In 2018 it was reported that 68% of UK Chief Executives saw employee mental health as a priority and yet only 16% had a strategy in place to deliver better workplace mental well-being. One in four of us will experience a mental health problem at some point (according to the charity Mind) and Oxford Economics estimated that the value of work performed by people working with mental health conditions in 2015 was £226 billion or 12.1% of the UK’s economic output. The arguments in favour of employers introducing effective systems to manage mental health are many and obvious. We spoke with Jennifer Nicol, a partner at specialist workplace lawyers, Doyle Clayton, to ask what is being done to roll out effective workplace mental health programmes and the legal risks for employers who are not.
Q: We can probably all think of a multitude of reasons why businesses should promote better mental health and wellbeing in the workplace, such as reducing sickness absence, poor morale, attrition, loss of reputation/inability to hire in talent, but what should employers consider first?
A: Firstly, it is important to distinguish between initiatives which help employees to be healthy and to feel well and a structured programme to manage mental health at work. Most organisations focussed on wellbeing will promote a healthy respectful workplace culture as well as interesting initiatives to promote good health and wellness. These might include provision of healthy food/catering on site, exercise, yoga. These are great things to have and no doubt help workers who are well to remain well. They may also no help to enhance productivity/quality of work in organisations which offer these benefits, but these are not measures which help to manage mental health problems when they arise.
Q: What is the starting point then for employers who want to put a system in place to manage mental health?
A: For any organisation introducing a policy from scratch or updating an existing one, the starting point is to publish a written policy on Mental Health. In conjunction with that, there should be an organisational Mental Health Plan (sometimes called an Action Plan). The Policy is a document available to all staff and is designed to say what the organisation’s stance is on mental health, what its aims are, who is responsible for delivering certain key services and where an employee can go to receive advice or help. The Plan is a management document which is not published. The Plan will usually list a number of objectives for the coming year (for instance reduction of absence due to mental health conditions by 20%, or setting a target that 80% or more of employees who disclose a mental health condition receive satisfactory support). The Plan will also say who within the organisation is responsible for delivering against these objectives and for leading certain initiatives. Some employers will have gathered data from employees about their mental health.
Q: Any words of wisdom on what to include or not include in these documents?
A: The Policy and Plan should be aligned fully with the organisation’s culture and ethos. It isn’t my intention to encourage employers to be too cautious but organisations may want to be careful about setting realistic targets and also about the wording of policies. Promising things as absolutes can lead to problems. Stating that the organisation will do something, as opposed to ‘may’ can set expectations too high and can lead to erosion of trust and (worst case) legal claims if promises are not delivered. Getting input from an employment lawyer is invaluable when it comes to drafting. Also, in terms of prior planning, if possible, conduct a good confidential employee survey focussing on mental health before writing or updating the policy. Of course, ensure that any data gathered by the organisation is stored securely and password protected. (Anonymous surveys can constitute sensitive personal data under GDPR if it is possible from the responses to identify the person who responded).
Q: Ok, the importance of having a workplace Mental Health Policy and Plan is now clear, so what should be considered next?
A: Awareness training is key. Most employers will provide training to all staff in spotting a potential mental health problem. The employer will usually find it helpful to tell employees who they should go to if they spot a problem or they have a problem themselves. Some organisations appoint Mental Health Champions or Mental Health First Aiders to be the first point of contact. The Mental Health policy should provide guidance for employees on what action may be taken once a problem has been identified.
Q: What happens once a mental health problem has been identified?
A: Mental health problems can come to an employer’s attention in a number of different ways. In a perfect world, an organisation’s Mental Health policy (and messaging on having a supportive attitude on mental health) will encourage a worker to disclose their health condition and to seek help. However, many employees still perceive that there is stigma attached to having a mental health condition and are reluctant to disclose it. Others may never have sought help previously and could be unaware that they have a mental health problem. In other cases, the employee may only reveal the condition during some other process such as performance management or within a disciplinary process.
In any event, the manager or HR professional who becomes aware of a mental health problem needs access to proper expert guidance and support. This is best provided by a combination of legal advice from employment lawyers who have expertise in mental health cases and specialist mental occupational mental health doctors (psychiatrists). Any organisation committed to handling mental health well, should arrange training for its HR managers and other people such as Champions or First Aiders in understanding their role, the boundaries and their/the organisation’s obligations.
Q: Why specialists? Will a GP report or Occupational Health report not suffice?
A: Mental health cases can be very complex. If an employee is in a crisis situation or experiencing significant difficulties, they need to see an expert. Occupational Health doctors and GPs are rarely able to provide the right treatment and may not be able to provide any proper diagnosis. In my experience of working with specialist psychiatrists, those professionals also say that tackling a mental health problem early means an increased chance of resolving the situation before the employee’s health deteriorates. This means less disruption for the business and a better outcome for the employee.
Common difficulties which employers experience when other doctors or health care professionals are consulted instead of specialist psychiatrists include waiting months for a medical report to confirm the employee’s state of health, a lack of diagnosis in the report (instead just “parroting” what the employee has told the doctor/nurse) and a lack of guidance on what to do next/where to access appropriate treatment.
Q: What are the risks for employers who haven’t yet got to grips with their workplace mental health policies and strategies?
A: Increasing numbers of people in the workforce will expect an employer to have a supportive attitude towards mental health problems and may be put off working for an organisation which does not. In terms of legal risks, there are many. An out of date policy may not provide enough guidance to enable employees to flag health issues before they become a problem. Managers are also let down by a lack of guidance on how to respond to or to support employees. Employers have a duty of care to avoid exposing employees to the risk of harm. A range of statutory claims could be brought by employees. The following list provides a non-exhaustive illustration of some of the common ones;
- Unfair dismissal – employee is dismissed for lengthy absence when the absence or poor attendance is due to a mental health condition.
- Constructive dismissal – an employee resigns because of the organisation’s unsupportive attitude to his/her mental health.
- Disability Discrimination – mental health conditions which are long lasting or likely to be long lasting (12 months or more) are likely to qualify as disabilities under the Equality Act 2010. Failing to promote someone or to hire them because of concerns over their mental health could give rise to claims.
- Failure to make reasonable adjustments –employers may be obliged to make reasonable adjustments to reduce the impact of an employee’s disability and failing to do so is contrary to the Equality Act 2010.
- Discrimination Arising from a disability – an example might be failing to take into account that an employee’s conduct (for instance losing concentration, not being able to work early in the morning, needing regular rest breaks) is intrinsically linked to their mental health condition/disability.
- Harassment under the Equality Act – the use of disparaging language in the context of mental health by managers or colleagues could constitute harassment contrary to the Equality Act 2010.
Disability claims carry to risk of uncapped compensation and in recent years there have been record awards made (over £400,000 in one recent case) so getting things wrong can carry huge financial and reputational risk.
Q: Why is there such a focus on tackling mental health in the workplace now?
A: There are many reasons. Firstly, there are very large numbers of people working currently in the UK with mental health conditions. We know that a significant proportion of UK GDP is delivered by this part of the working population. Keeping those people health and in work is therefore essential. Most people will have experienced a mental health problem personally or have a friend or relative who has experienced a problem. There have been a number of very high-profile cases where business leaders have spoken publicly about their mental health difficulties and overcoming them. Trade unions predict that due to various pressures, mental health problems are on the rise and management/senior management are likely to be the most at risk. To retain current and future talent, organisations must put a framework in place to promote a culture which is healthy from a mental health perspective and to help tackle problems quickly before they reach crisis point.
Jennifer has had an interest in advising businesses and individuals on workplace issues concerning mental health for over 20 years and particularly enjoys the “preventative” side of legal practice working with clients to draft good policies, partnering on tricky cases and arranging training for management and HR on workplace mental health. View Jennifer’s profile here – https://www.doyleclayton.co.uk/about/our-people/jennifer-nicol/