Last week UK Prime Minister Theresa May pledged to help schools and companies in England confront the 'hidden injustice' of mental illness of students and employees, in response to mental health experts’ call for further funding.
In a speech, the UK PM announced that more backing, approx. £15 million, will over community care, training for teachers, and increased help in the workplace. According to the BBC, the UK government says one in four people has a mental disorder at some point stage of their life, and that it costs the country around £105 billion per year.
This month Lawyer monthly heard from several sources, from legal experts to mental health specialists, on what they thought of the plans, what the current law says about mental health in the UK, and how businesses might have to adapt to certain changes.
Emma O’Leary, Employment law consultant, ELAS Group:
Mental health is increasingly talked about in the media nowadays, whether this is because there has been an increase in those suffering from such conditions or just that there is greater recognition we don’t know. It seems as a result that the Government has finally agreed to act, with the Prime Minister pledging to help companies and schools deal better with mental illness. Among the promises made are commitments to change attitudes to mental health problems as well as offering training to employers to help them support staff who need to take time off due to a mental illness.
Currently the UK’s employment legislation does not specifically cover mental illness. The Equality Act provides protection from discrimination for anyone who suffers from a disability; many mental health conditions are likely to be considered a disability within the meaning of the act and, as such, will place a duty on employers with mentally ill employees to make reasonable adjustments. This may mean accommodating reduced hours and allowing employees to take additional time off for medical appointments. These are basic provisions and, other than a standard duty of care, the employer does not necessarily have to have anything in place to further support member of their staff with a mental health condition. Failure to consider reasonable adjustments and treating the employee less favourably than you would an employee without a mental health condition can give rise to a claim for discrimination, for which the compensation is uncapped. In 2015 the average employment tribunal award was £17,319.
The changes Theresa May laid out are designed to not only improve mental health services but also remove the stigma that can be attached to such illnesses. Training for employers may well be beneficial and necessary but it’s difficult to envisage how this will be manifested and enforced. It may simply be that employers will be able to access support or be able to apply for some form of funding for training but it’s unlikely at this point that any employer would be forced to take these measures.
Whilst business forums will inevitably say that this is just another burden on the employer and will hit small businesses the most, given that mental illness is prevalent it may be that this will be beneficial to companies in the long term. One in four adults will experience a mental health condition in any given year and, with the cost of replacing staff due to mental health conditions reported to be £2.4bn per year in the UK, it makes sense for employers to help their employees combat the illness and build a culture of acceptance and support.
Being realistic about the pressures employees are under and ensuring they have a good work/life balance, offering support such as confidential counselling or occupational health consultations, employee assistance programmes, mindfulness and relaxations sessions and/or flexible working options are all ways in which a company can help support their employees who may be suffering in silence. There are also mental health first aid training courses, such as the ones offered by ELAS, which can help managers know what signs to look for, ways in which they can approach the subject of mental health with their employees, improve their listening skills and know what options are available to help support someone who is struggling with a mental health condition.
Here are four simple steps a company can take to ensure their employees maintain a good work/life balance:
- Have defined working hours. Ensure that employee workloads are manageable within these time constraints.
- Encourage a culture of openness. Employees must feel able to speak up if the demands placed on them are too great.
- Train managers to recognise the signs of stress and a poor work/life balance in employees. Know the effects that stress can have on a person and put preventative measures in place.
- Put in place policies that acknowledge the links between work-related stress and mental health. Regularly monitor and evaluate polices against performance indicators i.e. sickness or staff satisfaction.
Sean Walsh, Employment Law specialist at Harper James Solicitors:
The announcement from the Prime Minister has been welcomed by some as a first step to achieve equal footing with physical health conditions, but what is it likely to mean for employers?
Currently employers have a common law duty to take reasonable care and provide a safe place of work for their employees.
There’s also health and safety legislation such as the Health and Safety at Work Act 1974 which, whilst not creating rights for employees to sue their employer, affect and influence the common law duty of care. There is related influential guidance from the HSE and ACAS on how to manage work related stress.
There are other Statutory provisions that place additional obligations on employers in terms of their employee’s mental health. For example, in certain circumstances, an employer has an obligation not to unfairly dismiss an employee. Also, not to discriminate and consider reasonable adjustments if the mental health condition amounts to a disability under the Equality Act 2010.
If the employer breaches its obligations, it could face a prosecution from the HSE. However, it is more likely to face the prospect of a clam from the individual employee. Employee claims could include:
- a personal injury claim for breach of the employer’s common law duty of care (mainly under the law of negligence);
- a breach of contract claim being either a breach of express or implied terms of the employment contract (including the implied term not to cause psychiatric harm to any employee) which could possibly lead to the employee resigning and claiming constructive dismissal;
- a claim of unfair dismissal if, for example, the employee is dismissed for absence due to a mental health condition; and
- disability discrimination if the mental health condition amounts to a disability under the Equality Act 2010.
Mental health issues are now the primary cause of long-term sickness absence for employees in the UK. However, many employees are uncomfortable disclosing such issues to their employer and there remains a stigma attached. Part of the measures announced include a review into how best to ensure employees with mental health issues are supported at work in addition to employers and organisations receiving additional training in supporting staff who need to take time off.
It remains to be seen what comes of the review but the likelihood is an increase in awareness of mental health issues, not just among employers and those within who manage staff, but also amongst individual employees.
There are many cases where an employee doesn’t realise they have a mental health condition which affects their work. The measures announced may also provide a more supportive environment where employees are more willing to disclose and discuss mental health issues. This in turn, is likely to result in employers having to give more consideration to supportive measures for employees with a mental health condition and to get advice from an appropriate professional medical practitioner before making important decisions concerning that employee’s future employment.
Beth Taylor, mental health leader, PwC:
We welcome the Prime Minister's focus on mental health and recognise the vital role the government and companies have to play in offering people the support they need.
As a large employer PwC recognises it is important we help our people take care of themselves by providing tools and guidance to support their mental and physical health. As such, we have multiple programmes in place to help our people build resilience and promote mental wellbeing in both their personal and professional lives.
We have numerous mental health advocates in offices throughout the country, offering our people advice and support and encouraging a culture in the workplace where it is acceptable to talk about and destigmatise mental health.
We communicate with our people throughout the year with resources, information and events to raise awareness. This includes our monthly ‘Green light to Talk’ campaign, which focuses on different aspects of mental health each month. These have included conversations on anxiety, eating disorders, men’s mental health and panic attacks.
Kelly Feehan, Services Director, CABA:
1 in 4 people experience a mental health issue every year, so it’s alarming to learn that so many adopt the British ‘stiff upper lip’ mentality and suffer in silence. Therefore, it’s important for businesses to promote a supportive, non-judgemental ethos to encourage employees to open up. Line managers are evidently highly valued, so employers must ensure that these individuals are well trained to reassure and advise on sensitive issues that may be presented to them, and guide their mentee in the right direction if professional help is required.
Our research highlights a correlation between workers in more senior, higher paid roles and a reluctance to open up about mental health worries. It’s important to remember that mental illness is indiscriminate. If you fear being judged for sharing your experience, there are outlets available which offer counselling and impartial advice on overcoming stress, anxiety and depression. Failing to address mental health concerns can negatively impact wellbeing, job performance and relationships. Remember that a problem shared is a problem halved, so take the weight off your mind and be comforted in the knowledge that you’re proactively moving towards a happier, healthier future.
