Recent research carried out by the Chartered Institute of Personnel and Development has revealed that mental ill-health is now the leading cause of long-term sickness absence for more than one in five organisations in the UK. The Mental Health Foundation has also reported that, each year in the UK, 70 million workdays are lost due to mental ill-health. This covers a wide range of illnesses including depression, anxiety and other stress-related issues.
There is also evidence to suggest that the number of disability discrimination claims brought in the employment tribunals increased by more than 35 per cent between 2017 and 2018, and has increased by 99 per cent since 2013.
One potential reason for this sharp increase might be the abolition of tribunal fees, with more individuals willing to bring discrimination claims. However, a recent analysis has found that discrimination claims have risen eight times faster than the increase in other employment tribunal claims. This could suggest that the rise may be driven by more individuals suffering from greater workplace stress than in previous years.
Unfortunately, many staff are uncomfortable talking about issues with which they are struggling and this applies far more to mental health issues (for fear of looking weak) than physical ones. However, mental health issues, when not dealt with in a coordinated manner, can impact organisations in various ways. They can lead to increased instances of absences and staff turnover, which, in turn, can lead to a loss of productivity, loss of key skills and potential reputational and legal risks. Each of these elements, alone or together, can have material cost consequences for a business.
Employers have a general duty to promote the health, safety and wellbeing of their staff, as far as reasonably practicable. This applies equally to physical and mental health. Without giving this duty proper weight, organisations can be faced with numerous tricky scenarios including extended periods of absence, episodes of poor performance, and allegations of bullying and harassment. Employers should therefore ensure that they give this responsibility due regard by making regular health and safety assessments. In terms of mental health considerations, this could include risk assessments to ascertain whether their staff's workload is appropriate. Breaches of the general duty can result in criminal liability as well as other civil claims.
The most obvious claim that might arise in connection with an individual's mental ill-health is a potential disability discrimination claim under the Equality Act 2010, if the mental ill-health has a substantial, adverse and long-term effect on the individual's ability to carry out day-to-day activities. Employers must not treat staff less favourably because of their disability or for a reason related to their disability. Employers have a duty to make reasonable adjustments for any employee experiencing a disability under the Equality Act 2010. Reasonable adjustments for an individual with mental health issues could include adjusting their duties, reducing their working time and allowing time off for treatment.
If an employee has been dismissed by reason of incapability due to mental ill-health, this could give rise to claims both for unfair dismissal and for disability discrimination. Capability is a potentially fair reason for dismissal. However, for an organisation to avoid liability, this must be supported (among other things) by a fair process, sufficient medical evidence and a demonstration that alternatives to dismissal have been considered. Remember that compensation for discrimination claims is uncapped.
There is also a risk that, if an individual has had an excessive workload or been bullied and harassed, they might have suffered personal injury as a result. This could expose the organisation to a potential negligence claim.
The Stevenson-Farmer review of mental health and employers, published in October 2017, sets out what employers can do to better support employees, including those with mental health problems, to remain in and thrive through work. The review includes a comprehensive analysis that explores the significant cost of poor mental health to UK businesses and the wider economy. The government has pledged to commit to its 40 recommendations. However, there are many steps that organisations can take now to try to promote positive mental health in their work place.
- Review policies: with workplace stress and other mental health issues on the rise in the UK, it is even more important to ensure that organisations review their health and wellbeing related policies to ensure that they are up to date and robust. That will enable managers to be well equipped to tackle the tricky scenarios that can arise from mental health issues.
- Train line managers: in order to ensure organisations' policies and procedures are followed correctly, line managers should be given focused training. Often line managers see employees every day. If they are provided with appropriate training, along with support from occupational health, they are more likely to be able to identify early signs of common mental health problems, such as stress and depression. Line managers also have an important role in reassuring employees that mental health issues are as important as physical health issues.
- Launch or refresh workplace wellbeing schemes: such schemes can be invaluable in providing staff with a tool to talk openly about their mental health. If new schemes are launched or existing ones refreshed, employees might accept that mental health is not a "taboo" subject and might feel encouraged to seek support before they become overwhelmed by the issues with which they are faced. The effect of encouraging a culture where these points can be discussed openly should not be underestimated.
- Track absence: by tracking absence closely, managers can better identify when staff are frequently absent due to sickness, or absent more often than usual. Such patterns could indicate an underlying medical condition that has previously escaped the organisation's awareness, thus tracking absence might assist in providing support at an earlier stage than would otherwise have been the case.
- Appoint a mental health first aider: some organisations might decide that the size of their business is such that it is appropriate to introduce mental health first aiders to their workplace. Mental Health First Aid England has helpfully published a guide to provide further details on how to become a certified mental health first aider, the main responsibilities associated with the role and how best to engage with employers in promoting positive mental health.
- Review and audit strategy: organisations that have not yet addressed the mental health of their staff should use Mental Health Awareness Week, and the following weeks, as an impetus to review and audit their strategy to ensure that it is meeting the needs of both the business and its staff.
- Reinforce positive working cultures: if there is a culture where staff feel they are able to take their full annual leave entitlement or discuss mental health issues as freely as physical health issues, staff will have a proper chance to rest and deal with any issues that might otherwise become amplified.
- Recognise what works: where organisations already have robust processes, procedures, schemes and support in place, managers should take time to reflect and recognise which aspects of the measures work. Where a proactive approach already exists, for example offering enhanced annual leave or promoting flexible and agile working, this should be maintained in order to continue the support and preventative steps in place to protect staff.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.