14th – 20th May 2018 is Mental Health Awareness Week in the UK.

Mental Health Awareness Week is an opportunity for businesses to look at how their company culture and values support wellbeing in the workplace. Policies should be reviewed and questions should be asked about how to better support employees. People at all levels should know how to spot the signs and be able to raise concerns. 

A recent study in October 2017 reported that up to 300,000 people lose their job every year due to mental health problems. The same report also found that employers lose up to £42 billion a year due to mental health issues. Up to half of this loss relates to employees who were less productive due to poor mental health, with additional costs from sickness absence and staff turnover. This calls for changes to the law and a collective effort to promote employee wellbeing at work.

Currently, there is no one specific piece of legislation to protect employees struggling with mental health in the workplace and guide employers on how best to support them.

There are instead protective common law and statutory rights afforded to employees which employers should have regard to when fulfilling their duty of care and providing support.

Mental Health & The Equality Act

Under s.6 (1) of the Equality Act 2010 a mental health condition amounts to a disability where the employee has a “physical or mental impairment, which has a substantial and long-term adverse effect on his/her ability to carry out normal day to day activities”.

Long term has to be 12 months or more and although the impairment does not have to be clinically recognised, the effect of the impairment is important. A mental impairment can include learning difficulties, dyslexia, autism as well as mental illnesses and has to satisfy the definition under the Equality Act 2010.

Employers have a duty to make reasonable adjustments to support the employee once they become aware of the mental impairment. A failure to make reasonable adjustments constitutes unlawful discrimination.

Identifying the employee’s condition at the outset will save organisational costs in the long term. We recommend commissioning a medical report from the employee’s doctor or consultant at an early stage with the employee’s written consent and asking questions about the employee’s mental health and whether reasonable adjustments are required. This will enable the business to decide how best to support the employee. A doctor’s note or conversations with the employee may not be enough to discharge an employer’s liability.

Employers must also bear in mind that the duty of reasonable adjustment extends to investigations or interview processes with the affected employee.  This could include, for example:

  • being sensitive in all communication;
  • giving more time to employees to respond and communicate;
  • allowing others to communicate on their behalf;
  • adjusting the rules to allow not just union representatives to accompany them to a meeting but also a friend or a family member; and,
  • ensuring that timings and venues are convenient to them.

Additionally, employers have a statutory duty under the Management of Health and Safety at Work Regulations 1999, to protect employees from stress by conducting a risk assessment.

Up to 300,000 people lose their job every year due to mental health problems

Did you know, employers have a duty to protect their employees from psychiatric injury?

All employers have a common law duty of care to avoid causing psychiatric injury to their employees. Sometimes an employee may have an already existing mental health condition which is exacerbated by a grievance or disciplinary procedure, unreasonable work demands, failure to support on return to work after a long illness, a failure to support the employee from discrimination, or being bullied or harassed by a manager or a work colleague. If an employee is able to prove that the psychiatric injury was reasonably foreseeable then the Company could face a substantial claim for personal injury.

Failure to investigate or deal with the process appropriately can also lead to the employee resigning due to a breach of trust and confidence and claiming unfair constructive dismissal and compensation if they have been employed for more than 2 years.

In these instances, access to counselling or pointing staff to a policy document can seem dismissive and will not be enough to fully discharge an employer’s duty.

What next?

Businesses need to be proactive and produce, implement and communicate a mental health at work plan, promote effective people management, and safeguard against potential claims.

A good starting point is often training your people managers on how to approach a sensitive conversation about mental health. Tassic can help with creating a supportive company culture which fosters open communication and shared responsibility. Get in touch to find out more.

You may also be interested to read our earlier blog on Mental Health Awareness in the Workplace