Employment solicitor Joseph Lappin speaks to Lexis Nexis about mental health in the workplace and the duty employers have to their employees around mental health.

Mental health in the workplace – at the front of employers’ minds?

The world of work is continually evolving—technological advances, discussions around gender pay gaps and moves to tackle zero-hour contracts are just some of the recent developments contributing to key changes in the employment sector. But how is the world of work evolving in relation to mental health in the workplace, and is this a topic at the front of employers’ minds? On World Mental Health Day 2018, Joseph Lappin, solicitor in the employment team at Stewarts, discusses what obligations employers have, and any future plans to legislate on the matter.

Why should employers be supporting employees in their mental health at work?

Recent figures show that some progress has been seen, as employers are becoming increasingly aware of the need to offer more support at work. For example, 84% of managers recognise that employee mental health and wellbeing forms part of their responsibilities. However, employees still feel unable to seek help from colleagues or managers, with only a third of 18 to 29-year olds are comfortable talking with their manager about mental health issues compared to almost half of people in their 40s.

Employers who support their employees with mental health issues will inevitably reap the benefits, as research by the Mental Health Foundation shows that addressing wellbeing at work increases productivity by as much as 12%. These benefits could include:

  • higher staff retention
  • a more productive working environment—as a result of lower levels of sickness absence and because staff will return earlier than they otherwise would do following a period of sickness absence if they know that they will be supported on their return to the workplace
  • a more collegiate and open working environment—because employees will feel more comfortable discussing their mental health with their line managers

What obligations do employers have in relation to mental health in the workplace?

Employers have a legal obligation to take reasonable care for the safety of their employees under common law and the Health and Safety at Work Act etc 1974. This duty applies to both physical and mental health.

A mental health problem can amount to a disability for the purposes of the Equality Act 2010. The legal test is the same for both physical and mental health conditions. In certain circumstances, employers will have a duty to make reasonable adjustments for disabled employees. Whether an adjustment is reasonable will depend on the facts in each case. By way of example, a reasonable adjustment for an employee suffering from depression—and anxiety arising from the depression—could be the temporary allocation of some of the employee’s duties to a colleague, in order to ease the pressure on the employee.

Although guidance does exist, such as the Mental Health Foundation’s guidance on how employers can support mental health at work, there is no specific statutory guidance outlining how employers should support employees with mental health issues. The steps that an employer may want to take will depend on the particular circumstances and the nature of an employee’s illness. Some mental health conditions are mild and can be treated with medication, while others are long-term and debilitating. Some mental health conditions arise out of work-related stress, but many conditions exist independently.

Are employers obliged to provide mental health first responders?

Mental health first aid courses accredited by the Royal Society for Public Health are now being offered to employees, so that they can receive training by a quality-assured instructor to watch for certain behaviours and provide support to their colleagues.

Yet, there is no legal obligation on employers to make mental health first aid responders available to staff. Every company will need to take a decision as to whether it is appropriate for the associated expense to be incurred. Broadly speaking, most companies do not employ or train staff to become mental health first aid responders. That said, many employers—particularly large employers—do have an awareness of mental health issues and the impact that mental illness can have on staff, the business and productivity of the workforce.

There is copious guidance online that employers can rely on. The Health and Safety Executive and ACAS both provide useful online guidance for companies on how to manage employees with mental health problems.

We have seen an increase recently in clients asking us for guidance on how to implement a mental health policy to provide guidance for line managers in assisting colleagues who report mental ill health.

Are there any future plans to legislate on this? Should there be?

10 October 2018 was World Mental Health Day. This provided an opportunity for all stakeholders working on mental health issues to promote and discuss their roles and promote awareness of mental illness.

In October 2017, the government authorised an independent review into how employers can better support the mental health of people in their employment. There remains a stigma surrounding mental health, which means that both employers and employees often avoid tackling the issue in the workplace. The ‘Thriving at Work: the Stevenson/Farmer Review of Mental Health and Employers’ report recommended that the government encourage employer transparency when it comes to mental health in the workplace.

Although the report recognises the good work being done by many employers, it identifies solutions for employers to adopt to tackle problems caused by mental health in the workplace. One significant recommendation made in the report is an extension of the ‘Wellbeing Premium’. Essentially, this is a tax incentive that rewards employers who can demonstrate their commitment to improving the mental health of employees. It is currently being trialled by the West Midlands Mental Health Commission.

The good news is that there now appears to be recognition in government and business that mental health is as important as physical health. That said, although the government has been vocal in recent years in recognising the problems that mental health brings to society and the economy, it is doubtful that the government has the appetite or the time to consider legislating in this area when it is preoccupied by Brexit negotiations. This is a shame given that workplace disability discrimination remains a problem in the UK.

Someone suffering from a mental illness will only be protected under discrimination law if the illness has a substantial and long-term adverse effect on their ability to carry out normal daily activities. This means the effect must have lasted for or is likely to last for 12 months. It can therefore be difficult for an individual who suffers from a fluctuating mental health condition to be protected under equality law.

We think that the government should consider introducing better protection for employees who suffer from a fluctuating mental health illness, so they benefit from adequate protection under equality laws. The government could go as far as amending the Equality Act 2010 to the extent that depression is automatically considered as being a disability.

This article first appeared on Lexis Nexis on 10 October 2018. Please click here to view the original (subscription required).