Dealing with mental health issues at work

Gemma Elliott, Freeths

According to a recent report published by the Office for National Statistics, an estimated 137 million working days were lost to sickness or injury in 2016, 15.8 million of which were attributable to mental health issues, including stress, depression, anxiety and more rare conditions like schizophrenia. This is perhaps not surprising given that there are an estimated 16 million people in the UK suffering from mental health issues, and one in four people will experience some kind of mental health problem each year.

Knowing how to create a working environment where mental health issues are taken seriously, and having policies in place to provide appropriate support, are crucial to delivering successful outcomes for both affected employees and the businesses they work for.

Helping employers develop strategies to deal with mental health issues is something the government is committed to doing, which is why earlier this year Theresa May commissioned Dennis Stevenson and Paul Farmer to conduct an independent review into the problem of work-related stress. The aim was to help employers find ways to support employees affected by mental health issues, so that as many people as possible can remain in their positions and continue to prosper.

Stevenson and Farmer published their report, called ‘Thriving at Work’, on 25 October 2017. In it they estimate that, because of our collective failure to deal effectively with mental health issues, around 300,000 employees lose their jobs each year. This costs the UK economy between £74 and £99 billion a year, of which £33 to £42 billion is borne directly by employers.

The legal framework: what employers need to know

Recruitment

Since the Equality Act 2010 came into force, it is unlawful for employers to ask questions about health during the recruitment process. It is therefore up to individual candidates to decide whether to disclose a mental health problem at this stage.

Making enquiries about someone’s health is, however, something employers can do after a job offer has been made – and prior to employment being commenced – so that they are able to make any necessary workplace adjustments.

If, following such a request, the disclosure of a mental health problem is made, the employer has a duty to ensure that there is no discrimination as a result of this and the person in question continues to be treated fairly.

During employment

There are a wide range of potential claims that may be made by an employee suffering from mental health issues who feels that they have not been treated appropriately in the workplace. These include claims for personal injury, disability discrimination, harassment, unfair dismissal and constructive unfair dismissal.

The Health and Safety at Work Act 1974 imposes a duty on employers to ensure, as far as reasonably practicable, the health, safety and welfare of their employees at work. Employers are also under a common law duty to take reasonable care of employees’ health and safety in the workplace.

The Management of Health and Safety at Work Regulations 1999 require employers to assess workplace health and safety risks for their employees and for third parties. The Health and Safety Executive expects organisations to carry out suitable risk assessments, which should include assessing the stress levels of employees.

It may be possible for an employee to bring a claim for personal injury if they can prove that their employer has breached their duty of care and, that as a result of this, the employee has suffered an injury which was reasonably foreseeable.

Stress and the workplace

Determining what amounts to stress can be difficult. According to the Health and Safety Executive, stress in the workplace is ‘the adverse reaction people have to excessive pressures or other types of demand placed on them at work’.

So, is stress a disability? This is a question that was considered by the Employment Appeal Tribunal in Herry v Dudley Metropolitan Borough Council.

In this case, the tribunal acknowledged that, under the Equality Act 2010, a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, in the context of employment, a distinction needs to be drawn between a mental impairment protected under the Act and a general reaction to life events.

There will, the Employment Appeal Tribunal said, be cases where stress is present but has no apparent adverse effect on normal day-to-day activities. There will, however, be other cases where stress begins to have an all-consuming effect and as a result illness may follow. It is not, therefore, possible to classify stress alone as a disability, although it may eventually lead to the development of a disability, particularly if exposure to stress becomes excessive and prolonged and a mental or physical illness develops as a result.

If a person is classified as disabled under the Equality Act 2010, their employer is obliged to make reasonable adjustments. This may include moving the employee to an alternative position, providing management training, monitoring their workload, implementing stress and anti-bullying policies, providing counselling, carrying out risk assessments, and ensuring appraisals cover potential mental health issues.

What next?

The Stevenson and Farmer report makes 40 recommendations and calls upon employers to commit to six core standards around mental health. They include putting in place a mental health plan, having clear management responsibilities, improving employee awareness about mental illness and monitoring employee mental health on a regular basis.

With this in mind, employers should think carefully about the mental health and wellbeing of their staff and identify what they might be able to do to create a supportive working environment.

Action plan

There are seven immediate steps you can take to make a positive impact in your workplace:

  1. Consider having a mental health policy in place, if you do not already have one, and make sure you use it. Refer to it in meetings, email your staff about it and have a link to it on your intranet. By doing this you will provide your staff with certainty about the approach you take to mental health issues and give them the confidence to deal with problems as they arise.
  2. Ensure that your senior managers have a real awareness of mental health issues and understand policies and procedures. If they can talk confidently about mental health issues, then employees are likely to be far more comfortable about approaching them to discuss any problems they may have. You should also make sure that all members of staff know how to spot when someone might be struggling and how they can raise concerns.
  3. Educate managers about the importance of knowing their staff collectively and individually, so they can monitor any changes in working patterns or behaviour. For example, is someone taking absence more regularly or avoiding completing certain tasks? Do they seem quieter and more introverted than usual? Identifying anything out of the ordinary and talking about it with the individual concerned at an early stage will make it far easier to understand and manage any mental health issues that may be at play.
  4. Consider whether managers would benefit from mental health first aid training.
  5. Raise awareness in the workplace by participating in mental health awareness days and other related events throughout the year.
  6.  Newsletters and bulletins advertising mental health awareness can be left in communal areas, such as kitchens, bathrooms and canteens, and made available on your intranet to encourage more openness.
  7. Be aware of and use national campaigns like Mental Health Awareness Week (which, next year, will be 7 to 13 May) or World Mental Health Day (10 October every year) to promote awareness.

Take an individual approach with employees

If an employee is away from the office because they are unwell, consider the extent to which keeping in touch is appropriate. In some cases it may not be, and the individual will need space and time, particularly if work has been a contributing factor in their ill health. However, in other situations, it may be appropriate to make contact via a family member, friend or close colleague, or, if the employee feels comfortable doing so, you can speak with them directly.

Keeping the lines of communication open by calling every now and then, or sending an email or text passing on your best wishes, can help relieve some of the anxiety associated with returning to work after a mental health illness. It can also help employees feel engaged and connected with their colleagues, some of whom may be good friends.

As and when the employee returns to work, discuss with them (and appropriate medical practitioners) whether a phased return is appropriate and, if so, on what terms. Pay particular attention to whether any workplace adjustments might be appropriate, such as:

  • changes to how they perform their role;
  • a flexible working plan;
  • working from home, either some or all of the time;
  • providing increased supervision;
  • or offering extra support and mentoring.

The government pledge of mental health support to public sector workers

Theresa May has stressed the importance of having a cross-government plan to transform the way mental health is dealt with in schools, communities and the workplace. She has asked NHS England and the civil service – which together employ more than two million people – to accept the recommendations in the Stevenson and Farmer report, so that people employed by both of these organisations are guaranteed tailored, in-house mental health support.

Alongside this, the two bodies will:

  • introduce a set of core and enhanced standards, which will ensure employees have the knowledge, tools and confidence to understand and look after their own mental health and that of their colleagues;
  • have support in place to help prevent mental illness being caused or worsened by work and equip those who have a mental illness to thrive;
  • and be held to account for delivering these standards by their relevant regulators so that employees can have faith they are being introduced effectively.

With this pledge now in place, having a proactive approach to mental health in the public sector workplace is more important than ever.