Mental health in the workplace


21 September 2017

Mental health in the workplace

Mental health is fast becoming a hot topic in the workplace. It is rarely out of the media, reflecting campaigns by the NHS, charities, even celebrities and the Royal Family, and has been described as a ‘hidden injustice’ by Theresa May whose 2017 Conservative Party manifesto promised to strengthen discrimination law for those suffering from mental health conditions.

Recent evidence shows that it is being encountered more frequently in the workplace. NHS Digital analysed 12 million fit notes written by GPs in England between 2014 and 2017 and found a 14% increase in the number of workers signed off sick or put on restricted duties because of stress or anxiety, compared with a 6% rise in fit notes overall. It found that mental health and behavioural conditions accounted for 31% of fit notes, where the diagnosis was known, was the most common reason and resulted in longer periods of absence than with other types of illness.

According to mental health charities, these statistics do not necessarily reflect an increase in mental health problems. For example, more people are willing to disclose such problems as attitudes change for the better. Whatever the reasons behind this trend, employers are increasingly under pressure to better manage and support mental health at work and some are feeling ill-equipped to do so.

 

What are mental health problems?

The most common mental health problems identified by Mind, the charity, are:

  • Mixed anxiety and depression
  • Anxiety
  • Post-traumatic stress disorder
  • Depression
  • Disorders, including personality, OCD, bi-polar, eating
  • Phobias

While there is no medical definition of stress, it can cause mental health issues such as anxiety and depression. For more information, read here and here.

 

Workplace legal responsibilities and mental health: an overview

Employers have mental health related duties under the Equality Act 2010 (‘Act’) and health and safety legislation. There is also a risk of personal injury claims where the work may cause or exacerbate the problem.

The Act will protect a worker with many of the above mental health problems if he or she has a mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental health illness will be treated as having a substantial adverse effect if, but for treatment (such as anti-depressants), it would be likely to have that effect. In other words, if the treatment was stopped, how would the illness affect his or her day-to-day activities? In practice, relatively little evidence may be required to come to the conclusion that a person would be likely to be suffering from an impairment, but for the treatment.

The Equality and Human Rights Commission (EHRC) Code of Practice and Office for Disability Issues guidance must be taken into account by Employment Tribunals when considering whether someone is disabled and, generally, a Tribunal will expect expert medical evidence where a mental impairment disability is alleged.

The Act prohibits disability discrimination and also puts employers under a duty to make reasonable adjustments for disabled workers and job applicants who are placed at a substantial disadvantage because of their disabilities.

In addition, health and safety legislation requires employers to assess the risk of ill health arising from work activities, including mental health, and to take measures to control that risk.

Responding in practice: positive mental health policies and practice

While managing mental health at work can be challenging, there are positive wellbeing and economic reasons for acting including: reduced staff turnover, conflict, accidents and absence and increased morale, engagement and employer reputation.

In addition, research shows that some mental health problems are directly or partly caused by work. As a result, many employers accept that their role goes beyond a reactive, medical response and includes proactive organisational as well as cultural measures. For example:

  • having strong leadership to set a positive culture and reduce stigma, such the CEO playing an active role in workplace mental health campaigns and training senior managers as mental health champions
  • equipping line managers to respond confidently and fairly to the mental health needs of their staff through training and access to tailored help and advice. Training on management skills, how to spot and respond to the signs of mental ill health plus managing reasonable adjustments are all priority areas
  • offering comprehensive employee support programmes such as providing training on mental health self-awareness, coping techniques and building resilience and offering therapy, psychological advice and support
  • introducing or updating stress and mental health policies to communicate the support and help available, as well as explaining ill health and capability procedures
  • undertaking work-related mental health and stress audits to highlight problems areas, identify causes and steps forward, such as where local management issues or organisational change have created stress hotspots

 

Spotlight on reasonable adjustments

Successful reasonable adjustments help employees to stay in work while managing a mental health condition and may avoid absence or support a return to work. Typically, they involve the adjustment of workplace relationships and organisation, such as changing a worker’s duties, work location, hours of work, breaks, how they are supervised and their interaction with colleagues. Being guided by the worker with the mental health problem and expert medical opinion, where appropriate, is important and, unlike some reasonable adjustments for physical disabilities, adjustments may differ significantly according to the individual.

 

Overlapping issues: disciplinary, capability and mental health

Where an employee complains that work-related stress is causing his or her under-performance, or is signed off with stress and anxiety during a disciplinary process, it is important to step back and consider the facts objectively before deciding how to proceed. In the latter disciplinary situation, it may be appropriate to delay the disciplinary hearing, depending on the seriousness of the issue, the employee’s record and medical opinion on whether and when the employee will be fit to attend, and to address the capability issue separately to the disciplinary process.

In the poor performance situation, it is important to consider health related solutions as well as performance management procedures, where mental health problems may be linked to under-performance.

 

Change ahead?

In January this year Theresa May appointed Lord Stevenson and Paul Farmer CBE to lead a review with the aim of providing practical help to employers on employee wellbeing and mental health. It is also expected to make recommendations on whether the Equality Act should be changed to better protect mental health.

The review is expected to be published this autumn. While details of a possible change to the Act are currently unclear, the Conservative manifesto promised to strengthen disability discrimination protection for people with shorter-term mental health issues described as ‘episodic and fluctuating’, with depression given as an example. Any move to extend disability discrimination protection provides further impetus for employers to review and improve their mental health strategy, policies and practices.

For more information please contact Simon Rice-Birchall.

Simon Rice-Birchall, Partner
e: simonrice-birchall@eversheds-sutherland.com
t: +44 113 200 4978