At our panel event on Wednesday 12 October 2016 we will be gathering together five experts on mental health in the workplace to discuss how employers can best deal with and manage issues around mental health in the workplace.

This requires a balance of understanding the issues, supporting employees, and managing (and interpreting) often complex (and potentially uncertain) medical advice.

This article serves as a pre-cursor to this event, aiming to bring you up to speed with some of the key issues which surround this topic, as well as giving a broad outline of some of the practical ways that line managers and HR might deal with mental health issues in the workplace.

Why is mental health a workplace issue?

It appears that as a society, mental health issues are on the rise. This has an obvious impact on the workplace, and places demands on employers to understand and manage issues related to mental health.

Stress, depression, anxiety, schizophrenia and bipolar disorder are all examples of mental health disorders which may impact on someone in the workplace.

A lack of understanding of such illnesses, and how they impact on an individual in a particular case, can have a detrimental impact: whether it be higher sickness absence, grievances, employee relations issues, loss of management time, higher sick pay liabilities and Permanent Health Insurance (PHI) premiums or, ultimately, legal claims and reputational damage.

Proactive management assists in protecting employers and can mitigate these impacts (above). It increases the chances of an individual being able to remain at work through illness, and continue to build their career.

The legal risks around mis-management of mental health issues

There are a number of risks which employers will be aware of. Line managers should have an understanding of these risks and how to avoid them. Listed below is a short summary of the various claims that an employer is exposed to.

Potential claims arising from mental and physical illness in the workplace

Health and safety - legislation imposes a general duty on employers to ensure the health, safety and welfare at work of their employees, including requirements to assess health and safety risks (including stress related illnesses) to their employees and other third parties.

Disability discrimination – the law imposes a duty not to treat employees less favourably because of their disability and to make reasonable adjustments to remove or reduce a disabled employee's disadvantage. Employees suffering from a mental health condition may be disabled if they satisfy the legal test for disability.

Personal injury claims – the law imposes on employers a duty to protect and take reasonable care of the health and safety of employees. For example, an employer who is aware of an employee’s potential stress related illness or vulnerability may need to take reasonable remedial steps (e.g. redistributing work, counselling etc.) or risk a compensation claim for personal injury based on negligence.

Unfair dismissal – an employee with two years' service is protected from unfair dismissal. An illness may well constitute a fair reason for dismissal on grounds of capability but if the procedure followed is unfair, the employee can claim compensation or reinstatement/reengagement.

Constructive dismissal – employers are under an implied duty to take reasonable steps to ensure an employees' safety, including a duty not to cause psychiatric harm to an employer by reason of the amount/character of work imposed. Breach of this duty can give rise to constructive dismissal and/or breach of contract claims.

Bullying and harassment claims – the protection from Harassment Act 1997 imposes a duty on employers not to harass or bully its employees. This includes harassment of one employee by another in the course of employment.

If a manager suspects an employee has a mental health issue, what should they do?

A manager should be in a position to both identify any potential problems and know how to act on their suspicions or knowledge. Training line managers can help to encourage more openness about mental health. This in turn can encourage staff to disclose any problems they are experiencing, thus allowing their managers to respond at an early stage, and importantly to seek HR's involvement.

Taking, for example, a potential stress related illness; the line manager who knows an employee is suffering from stress should consult the employee concerned directly and discuss with the employee whether there is anything they can do to assist. They should look to understand, at a basic level, the causes of the stress and whether work is having an impact. They should then consider whether anything can be done to assist. This should be done together with HR.

If the employee's condition also qualifies as a "disability" [see inset box], the employer may have to consider going further (as required by the Equality Act) to ensure that it complies with its duty "to make reasonable adjustments" for a disabled person. Determining whether a condition is a disability is not always clear cut. Stress is not a disability in itself, but conditions which are commonly linked to stress may well be e.g. clinically recognised depression, schizophrenia and post-traumatic stress disorder.

Based on what the employee has said, obtaining medical advice as to what condition the employee is suffering from, together with what impact work may or may not have, and what adjustments could be considered in the light of this, is often a necessary step to take.

Note that none of this requires an employer to do everything which is necessary to protect or assist an employee. It merely gives the employer the information it needs to assess whether the individual can remain at work and do their job, and what adjustments and support would be necessary or desirable for an employee. If no adjustments are possible and an individual is not capable of continuing in their job, this information gathering enables an employer and an employee to recognise this and to deal with matters appropriately (without having jumped to any conclusions or assumptions).

What is a disability?

To claim protection of the Equality Act, a claimant employee needs to show they have a disability.

To qualify as disabled under the Equality Act -

  • The person must have a physical or mental impairment
  • The impairment must have adverse effects that are substantial
  • The substantial effects must be long term (lasting or likely to last at least 1 year)
  • The long term substantial effects must have an adverse effect on normal day to day activities.

The duty to make reasonable adjustments

Examples of adjustments

  • Allocating duties to another person
  • Transferring employee to fill another role
  • Modifying employee's working hours
  • Providing additional training
  • Removing employee from a capability procedure
  • Allowing absences for treatment
  • Providing supervision or other support
  • Relax absence management policies
  • Allowing a phased return to work