Handling mental health at work
- Key indicators of mental health issues
- Getting it right – the benefits
- Getting it wrong – the risks
- Employers’ legal duties
- HSE Management Standards
- When is a mental health condition a disability?
- Practical steps to take
- Mental health is a real issue for a large proportion of the workforce and businesses and has arguably been exacerbated by COVID-19.
- ACAS found most common forms are stress, anxiety, depression, phobic anxiety disorders and obsessive-compulsive disorders. In some cases, these conditions may amount to a disability for legal purposes.
- Stress is not - in itself - likely to be a disability but can have a significant impact on wellbeing - Herry v Dudley Metropolitan Borough Council.
- The statistics are revealing: one in six British workers will experience depression, anxiety or stress-related issues at any one time, the total cost of poor mental health to UK employers was £4.9 billion (in 2016-17), and in 2018-19 stress, depression or anxiety were responsible for 44% of work-related ill health.
KEY INDICATORS OF MENTAL HEALTH ISSUES
- ACAS states that the key indicators of mental health issues are:
- changes in behaviour, mood or how the individual interacts with colleagues
- changes in the standard of work or focus on tasks
- appearing tired, anxious or withdrawn and reduced interest in tasks the individual previously enjoyed
- changes in appetite and/or increase in smoking and drinking alcohol
- an increase in sickness absences and/or turning up late to work
- Give managers the tools to identify possible mental health issues and know whom to contact within the organisation if they are concerned.
GETTING IT RIGHT – THE BENEFITS
Supporting staff with mental health issues and reducing work related stress/mental health absences is beneficial for both employer and employee:
- staff are healthier and happier at work
- improves performance and makes staff more productive
- reduces absence levels and presenteeism
- reduces workplace disputes and potential claims
- makes the business more attractive to job seekers
Mishandling a mental health issue could potentially give rise to claims for:
- breach of implied duty of trust and confidence, leading to constructive dismissal claims
- breach of the statutory duty to assess risk of stress-related ill health arising from work activities and taking steps to control that risk
- negligence or breach of the employer’s common law duty to take reasonable care
- unfair dismissal, i.e. if the individual is dismissed but without a fair reason and/or a fair procedure is not followed
- discrimination claims if the condition amounts to a disability
- You have a common law duty of care to your staff. You must do all you reasonable can to support employees’ health, safety and wellbeing specifically by:
- ensuring a safe working environment (the Health and Safety at Work Act 1974) - this includes physical and mental health.
- protecting workers from discrimination (the Equality Act 2010), and
- carrying out risk assessments of the working environment (the Management of Health and Safety at Work Regulations 1999)
- You also have an implied contractual (as opposed to statutory) obligation to operate a safe system of work.
- All employers are required to carry out a stress risk assessment. This should be recorded in writing if they have five or more employees – the HSE provides guidance on this.
- Consider the HSE Management Standards when running your risk assessment.
The HSE Management Standards identify six areas of work which can affect stress levels:
- Demand – assess the individual’s workload, work environment, working pattern
- Control – how much control do staff have how they do their work?
- Support – resources, encouragement, etc from managers and colleagues
- Relationships – do you have positive working arrangements in place to avoid conflict? Do you have processes in place to encourage and aid teamwork?
- Role – do your staff understand their role and place within the business?
- Change – how do you communicate and manage business changes? Is the business transparent about its plans?
WHEN IS A MENTAL HEALTH CONDITION A DISABILITY?
- Someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (s. 6 of the Equality Act).
- Having such a disability triggers your legal duty to make reasonable adjustments (s. 20 of the Equality Act).
- In the case of mental health conditions, this can include adjusting sickness absence triggers, workload, working arrangements, reduction in hours, etc.
- You can be deemed to have constructive knowledge of disability (Donelien v Liberata UK).
- Carry out the HSE risk assessment and keep under review – particularly now at this period of uncertainty:
- effective and accurate assessments will only really be possible if you discuss them with staff
- identify what the risks are, how they could be alleviated and who is responsible for actions
- develop an action plan
- Identify the costs of absence and/or presenteeism to the business – the DWP provides a useful Workplace Wellbeing Tool. Consider investing instead in providing additional resources to staff.
- Inform staff of the internal and external resources and support they can access, e.g. counselling services, employee assistance programmes.
- Train your managers on dealing with mental health issues.
If any employee presents or shows indicators of mental health issues:
- invite the individual to discuss it. Use a neutral location or technique which allow them to feel more comfortable, e.g. walking whilst talking means no direct eye contact
- explain you have concerns and reference examples of behaviour (if applicable)
- listen to them
- if there is a condition or issue, identify it and try to find out more
- identify and consider ways of supporting and/or resolving the issue
- if applicable, obtain medical reports and/or occupational health reports