Responding to Mental Health Challenges in the Workplace - Guest Article by John Morgan and Sam Biggs

Supporting the mental health of employees is an increasingly important consideration for employers. Whilst many focus on the legal entitlements of employees, it is now a business imperative. According to the Health and Safety Executive, stress, depression or anxiety accounted for 914,000 new or long-standing work-related ill health cases in the year 2021-2022. It is now the most common cause of work-related ill health, constituting 51% of absences. 17 million working days were lost due to such absences, so it’s essential to find ways to try and reduce this impact on employers.

What is mental health and which are the common types of mental health problems?

We all have mental health, just like physical health. Mental health includes psychological and emotional well-being and can change based on a number of factors including bereavement, relationships, things outside one’s control, employment and many other factors.

During any given week, the following proportions of the population in England are affected by mental health conditions as follows:

• Mixed anxiety and depression (8 in 100 people)
• Generalised anxiety disorder (6 in 100 people)
• Post-traumatic stress disorder (4 in 100 people)
• Depression (3 in 100 people)
• Phobias (2 in 100 people)
• Obsessive-compulsive disorder (1 in 100 people)
• Panic disorder (fewer than 1 in 100 people)

What legal responsibilities does an employer have in relation to mental health?

Under both equality and health and safety legislation, employers have mental health related duties. Equality law protects employees with mental health issues where their health condition meets the definition of disability i.e. where the employee:

1. has a physical or mental impairment;
2. which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

A disability is defined as being ‘long-term’ if the condition will affect the employee for at least 12 months. A mental health condition will be considered as having a substantial adverse effect if, but for the treatment being received, such as anti-depressant medication, it would be likely to have that effect, which is more than minor or trivial.

The legislation is clear that employees should not be discriminated against based on their disability. This would include direct discrimination (when an employee is treated worse than another person because of their disability, such as rejecting somebody in recruitment because they disclose depression); and indirect discrimination (where an employer has a policy or practice which has a worse impact on a disabled employee than non-disabled, such as all employees being required to work late shifts which makes it difficult for those with an anxiety disorder to take necessary medication).

Employers should also be aware of the duty to make reasonable adjustments for those employees (as well as job applicants) with a disability. Once an employer is aware of an employee’s disability, such adjustments that could be considered include: adjustments to work location, environment or hours of work, allowing additional rest breaks and providing work management training. We see our clients achieve better results when they work with employees to devise a plan which will enable them to carry out their roles as effectively as possible. Given the multiple and varied ways mental health issues can affect work, we’ve also seen great results where expert medical opinion and occupational health advice are secured, which allows tailored adjustments to be made for each employee’s specific circumstances. Making such adjustments will not only ensure employers are acting in compliance with the legislation but will help employees to stay at work whilst continuing to manage their condition and subsequently avoid the impact on the business.

Employers should also be aware of the risk of harassment due to disability. This occurs when an employee is treated in a way that makes them feel intimidated or offended. An example of this would be name-calling or swearing at an employee because of their disability. Employers should ensure they do everything they can to prevent other employees from acting in such a way. We’ve found one of the best ways to deal with this is to invest in disability awareness training for all employees, as well as specific training for managers on how to watch out for and respond to signs of harassment.

Additionally, employers should ensure they consider health and safety legislation in assessing the risk of mental health conditions arising from work activities and any necessary procedures to mitigate this risk. Employers are required to provide a safe working environment for employees, with work-related stress being a factor to consider. Leading bodies in the field consider that whilst stress is not in itself strictly a mental health condition, it can quickly develop into a range of mental (and physical) health conditions and subsequently have an impact on employee productivity and workplace satisfaction. Employers should therefore seek to reduce stress in the workplace as far as is reasonably practicable.

What else can be done to support those suffering from mental health conditions?

Some proactive measures which we’ve seen our clients take include:

• introduce a stress and mental health policy to help communicate the support and help available to employees;
• provide all employees with an employee assistance programme, enabling them to access confidential medical support before and whilst suffering from mental health conditions;
• conduct ‘mental health in the workplace’ audits to highlight problem areas within the business and identify any potential causes which can be dealt with;
• regularly review approaches to mental health within the organisation;
• consider mental health first aiders within the organisation, seeking representatives from a diverse range of backgrounds to enable support for all employees;
• equip managers with training on how to support employees within their teams with mental health conditions, as well as how to maintain their own well-being.

Looking to the future

In January 2023, a Bill was introduced to Parliament which would impose a legal requirement on employers to provide mental health first aid training as part of their physical aid training. Current legal obligations on employers only require physical first aid training. The bill aims to ensure employees (or specific categories of employees such as managers) receive a base level of training about mental health issues. It is unlikely the Bill will pass in its current form as it has not received government support, but the fact some consider legislative intervention to be necessary, demonstrates the substantial shift in positions around mental health. We can expect conversations to continue and perhaps further legal developments in future.

 

Please do feel free to follow us on LinkedIn (John and Sam) if you would like to be kept up to date with ongoing changes in this area.

John Morgan is a Principal Associate and Sam Biggs is a Trainee Solicitor, each in Eversheds Sutherland (International) LLP’s market-leading Labour, Employment & Immigration team.