Mental Health in the Workplace
Today (10 October) is World Mental Health Day. To quote the CIPD: “Mental health issues have a significant impact on employee wellbeing and are a major cause of long-term absence from work. Employers are encouraged to promote good mental health and provide support for those employees who are experiencing mental ill health such as anxiety or depression.”
It is not surprising that mental health issues (including stress, depression, anxiety and other serious conditions) are one of the most common reasons for sickness absence from the workplace, resulting in 15.8 million days lost (11.5% of total days lost) in the UK in 2016 (Office of National Statistics).
Despite these figures, only around 17% of employers recognise that that percentage is likely to apply to their staff. It is no surprise that highlighting mental health and wellbeing in the workplace has been the focus of recent campaigns and discussions.
So what can or should employers do to support employees who are suffering from mental health challenges? Employers should start by focusing on two main aspects: pre-employment and those issues arising during employment.
The law provides discrimination protection to employees with mental health conditions is if they qualify as being disabled under the Equality Act 2010. Employers also have a duty to take reasonable care for the health and safety of their employees. The Equality Act protects employees who have a qualifying disability from:
- less favourable treatment because of that condition compared to treatment of those who don’t have such a condition (direct discrimination);
- less favourable treatment arising in consequence of the condition which can’t be objectively justified;
- indirect discrimination where, without justification, a provision criterion or practice puts or would put someone who shares that condition with others at a disadvantage compared to others who don’t have the condition, when the person with the condition is disadvantaged;
- harassment and victimisation; and
- there is also a duty on an employer to make reasonable adjustments to avoid any substantial disadvantage that a disabled person may find themselves subjected to because of a provision, criterion or practice; or physical feature compared to a non-disabled person
Lawful “positive action”, allows employers to take steps to address the position if disabled people suffer a disadvantage, have particular needs or are disproportionately under-represented, without the risk of a claim for discrimination by non-disabled people.
Typically many employers use psychometric testing, language tests or questionnaires to initially reduce the number of candidates they receive for a particular role. However, pre-employment issues can create scope for discrimination claims against employers.
The Equality Act prevents employers from asking wide-ranging health questions before offering a candidate work or placing the candidate in a pool of available candidates. That means that employers can ask certain limited questions at an early pre-offer stage and only when they are necessary, for example for:
- establishing whether the applicant will be able to undergo an assessment or whether the employer needs to make reasonable adjustments in respect of such an assessment;
- establishing whether the applicant will be able to carry out a function which is intrinsic to the work concerned;
- monitoring diversity;
- supporting positive action; or
- establishing if the applicant has a disability, where such disability is a requirement for the job in question.
It is worth remembering that compensation for unlawful discrimination is potentially uncapped, and can include compensation for injury to feelings and personal injury.
In Government Legal Services v Brookes (EAT/0302/16), a candidate who suffered from Asperger’s syndrome successfully brought claims in the employment tribunal for disability discrimination after the first stage of a recruitment process which involved a multiple-choice based on situational judgment. GLS had indirectly discriminated against Ms Brookes. It had failed to make reasonable adjustments and had treated her unfavourably because of something arising in consequence of her disability. The Tribunal ordered GLS to pay compensation to Ms Brookes and made a recommendation that the Respondent issue a written apology to her and review its procedures for people with a disability applying for employment, with a view to greater flexibility in the psychometric testing regime.
Employers may be expected to allow extra time or adjust their chosen method of testing in cases where a disabled applicant asserts that the method of testing puts them at a disadvantage.
What should employers do when an employee becomes mentally unwell at work? They should intervene early. They should have policies and processes in place to ensure early identification and diagnosis; and offer means of support. This can encourage constructive and professional relationships to allow employees to feel comfortable discussing issues they may have; and to successfully maintain operations in work.
Policies are important, but the employer’s obligations do not stop there. Employers must consider the steps they take and whether they are appropriate depending on the particular circumstances of the case.
Employers should ensure that they understand the employee’s condition or impairment as far as possible, and as early as possible. This includes obtaining medical evidence from their general practitioner, or in difficult cases form a specialist about the condition. In some cases carrying out a risk assessment would be appropriate.
Giving employees access to confidential counselling; and training staff about mental health and on the employer’s relevant policies will help to support affected employees.
Many employers are introducing training in mental health first aid which includes a process to assess risk, engage in a conversation with the employee and listen non-judgmentally. The first aiders aim to provide reassurance and information and encourage professional help and informal support.
The Scottish Government has stated in its Mental Health Strategy 2017-27 that its ambition is to prevent and treat mental health problems with the same commitment, passion and drive as it does with physical health problems. The UK Government’s review by Lord Stevenson as to how to transform how mental health is regarded in the workplace is awaited. Employers must think about mental health in the workplace with a view to supporting their employees at all stages in their careers.
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