Mental Health Awareness Week: legal responsibilities of employers
With Mental Health Awareness week this year focusing on Action, Kate Lawson, director of Element Law, outlines the legal responsibilities of employers to safeguard the mental wellbeing of their employees – as well as the business benefits of doing so.
This year Mental Health Awareness week runs from 11 to 17 May, with “Wear it Green Day” falling on 14 May. This campaign is organised by the Mental Health Foundation, a UK charity which focuses solely on preventing poor mental health and protecting good mental health.
The theme of this year’s weeklong campaign for good mental health is Action. We have come a long way in terms of awareness of mental health and conditions, and the focus this year is on Action to prevent people become unwell in the first place.
This applies not only in family and friendship groups but also in the workplace. The strongest incentive for an employer to take action to protect good mental health in its workforce is the fact that a happy workforce is a productive, stable workforce. There are of course also legal obligations on employers in relation to the mental health of their staff.
What types of poor mental health conditions are most prevalent in the workplace?
Stress is a common issue as both a cause and symptom of deteriorating and poor mental health. The Health & Safety Executive (HSE) defines stress as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them at work’. The word excessive is important when considering the level of pressure that could foreseeably cause stress and other symptoms of poor mental health, including depression and anxiety.
Diagnoses for neurodivergent conditions are becoming more common amongst the working population. Many neurodivergent people do not see themselves as disabled and neurodivergent conditions may not amount to mental health conditions. However, unsupported neurodivergent employees, such as those with ADHD or autistic spectrum condition, face a significantly increased risk of experiencing mental health conditions, such as anxiety and depression.
What are an employer’s key obligations in supporting mental health in the workplace?
Employers have a general duty to take reasonable care for the safety of their workers, including in providing a safe place of work and a safe system of working. Under health & safety law, employers must ensure, so far as reasonably possible, the health, safety and welfare of all their employees in the workplace.
Other duties on employers include specific obligations under the Equality Act 2010 in cases where long term mental health conditions may be sufficiently serious to become a disability. The key element here is the duty to make reasonable adjustments to the working conditions and environment of a disabled employee to support that employee. ACAS has produced a reasonable adjustments guide for mental health. ACAS encourages making reasonable adjustments for employee’s experiencing shorter-term mental health challenges too to support them to stay in work when recovering from or managing a mental health condition, even if the obligation to make such adjustments does not arise under the Equality Act.
What liabilities might an employer face if they do not provide reasonable mental health support?
Employees cannot directly sue their employer for breaches of health and safety; sanctions in this area are largely HSE investigations and criminal fines. However, failure to meet the health & safety standards is strong evidence of breach of the duty of care that an employer owes to their workers; this could lead to a personal injury claim for stress.
Businesses that are looking to support their team’s mental health are well advised to implement the steps recommended in the HSE’s Management Standards on Stress and the Working Minds campaign. This will not only help create a more supportive environment, with the benefits that an engaged, happy workplace brings; it also helps avoid liability for breach of the duty of care to staff which can cause a foreseeable mental illness.
An employee who faces excessive stress at work or other behaviours such as bullying may also resign and bring a claim for constructive unfair dismissal, on the basis they resigned in response to their employer’s intolerable behaviour which amounted to a breach of their employment contract.
How can businesses introduce positive practices to support the mental wellbeing of staff?
Guidance on how to create a positive workplace culture in relation to mental health, and in particular workplace stress, is contained in the Management Standards for Work-Related Stress published by the HSE. This documents six areas an employer must consider to comply with the duty to keep employees safe at work. These areas or factors are:
- Demand: which includes issues such as workload, work patterns and the work environment.
- Control: how much say do the people have over the way they work?
- Support: which includes encouragement, sponsorship and resources provided by the organisation, line management and colleagues.
- Relationships: which includes promoting positive working to avoid conflict and dealing with unacceptable behaviour.
- Role: do people understand their role within the organisation and does the organisation ensure roles are not conflicting?
- Change: which requires consideration of how organisational change (large and small) is managed and communicated.
The HSE’s Working Minds campaign recommends a five-step approach to managing mental health in the workplace:
- Reach out: Employers should talk to staff about mental health and stress at work both individually and as a team.
- Recognise: Employers need to recognise the signs of stress in individuals (which include taking time off, arriving for work later, being twitchy or nervous, having mood swings, being withdrawn, losing motivation, increased emotional reactions) and in teams (which include arguments, higher staff turnover, more reports of stress, more sickness absence, decreased performance, more complaints).
- Respond: Employers should listen to what is being said by staff and agree action points and solutions with them.
- Relect: Employers should monitor and review actions taken and not taken.
- Make it routine: Employers should make it normal to ask and talk about how people are feeling and coping.
What other steps should a well-advised employer take?
Risk assessments are a key part of meeting the health and safety duties. Mental health and stress policies are also important to have in place, but these must be followed and utilised as living documents, and should be regularly reviewed.
Mental health champions and trained mental health first-aiders are also important to have in place.
Many employers also provide access to Employment Assistance Programmes or EAPs, which often offer independent confidential counselling services by phone. Occupational health or vocational rehabilitation services are also important, particularly in specific cases of deteriorating mental health concerns or long-term absence.
For more information on these options is available from ACAS, click here.
Introducing practises to support the positive mental health of staff has been shown to reduce absenteeism, increase productivity and reduce staff churn – year round, not just during Mental Health Awareness Week.
If you’re looking for office space from a provider that wants to support your business success, get in touch.
MEET THE EXPERT
The director of Element Law, Kate Lawson is a specialist employment law and HR solicitor for businesses and employees across the country. She also provides bespoke HR Training and Mediation Services.
Share this page
