Let’s Talk About… Mental Health in the Workplace

Posted in : Let's Talk About... on 16 May 2018
Lisa Bryson
Eversheds Sutherland

Mental health is fast becoming a hot topic in the workplace. It is rarely out of the media, reflecting campaigns by the health trusts, charities, even celebrities and the Royal Family.   This is perhaps not surprising when you consider that recent research undertaken by 'Business in the Community' has highlighted that one in four adults currently working in Northern Ireland have been diagnosed with some form of mental health disorder. 

According to mental health charities, these statistics do not necessarily reflect an increase in mental health problems. It may be the case, for example, that perhaps more people are now 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 Your Head, 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.

What are the workplace legal responsibilities in relation to mental health?

Employers have mental health related duties under the Disability Discrimination Act 1995 ('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 an employee 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 the individual’s 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 Commission of Northern Ireland's Code of Practice on Disability must be taken into account by the 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.

Can reasonable adjustments help?

Successful reasonable adjustments can 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.

How do you manage overlapping issues, for example, disciplinary and capability matters 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.

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, reduction in accidents and absence, 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 already accept that their role goes beyond a reactive, medical response and includes proactive organisational as well as cultural measures.

The Stevenson/Farmer review, published at the end of 2017, included 40 recommendations directed at employers, government and other organisations.  The recommendations include the promotion of a set of ‘mental health core standards’ that all employers should adopt, with enhanced standards for large employers and employers in the public sector.   The core standards suggest all employers can and should:

  • Produce, implement and communicate a mental health at work plan that promotes good mental health of all employees and outlines the support available for those who may need it.
  • Develop mental health awareness among employees by making information, tools and support accessible.
  • Encourage open conversations about mental health and the support available when employees are struggling.
  • Provide good working conditions and ensure employees have a healthy work-life balance and opportunities for development.
  • Promote effective people management to ensure all employees have a regular conversation about their health and well-being with their line manager, supervisor or organisational leader and train and support line managers and supervisors in effective management practices.
  • Routinely monitor employee mental health and wellbeing by understanding available data, talking to employees, and understanding risk factors.

Recognising that some employers feel ill-equipped to manage mental health issues, the review recommends that Government should set up a mental health online information portal to promote best practice. It also notes that employers need to recognise that their role goes beyond what happens in the workplace, not least because technology and other factors increasingly blur the line between work and home life, but also because employers can play a significant role in supporting employees through major life events like bereavement, debt, and relationship breakdown, which can cause or exacerbate mental health conditions.

The Government has said it will respond to the recommendations in due course. Although new legislation is unlikely in the short term due to the present political climate, it is a possibility later down the line. Employers may find the recommendations of the Stevenson/Farmer review of interest as they consider their own individual approach to this issue.

===================================================================

Lisa Bryson is the lead facilitator at Legal-Island’s Mock Employment Tribunal workshop on 14th June 2018.

Find out more:
https://www.legal-island.com/event/mock-employment-tribunal/

 

This article is correct at 16/05/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Lisa Bryson
Eversheds Sutherland

The main content of this article was provided by Lisa Bryson. Contact telephone number is +44 28 9568 0518 or email LisaBryson@eversheds-sutherland.ie

View all articles by Lisa Bryson