An online search for “workplace stress” returns an indigestible 1.5 million results, so whether you are suffering from it or managing it, there is an almost inexhaustible array of resources at your disposal.
But stress is just one area of mental health, and, for employers, the challenges of dealing with this issue and making sure that all legal obligations are satisfied has got more difficult following changes to the definition of disability under the Equality Act 2010. Employers are now, more than ever, required to put in place adequate procedures and allowances for dealing with mental health in the workplace.
The move to push mental health higher up the business agenda has been gathering pace over the last few years. Employment lawyer Christopher Syder, partner at Davis Arnold Cooper, says: “Without doubt employers need to be on their guard because the Disability Discrimination Act (DDA) 1995 originally provided that a mental illness would only qualify if it was ‘clinically well-recognised’. However, this requirement was removed by section 18 of the DDA 2005, and does not appear in the Equality Act 2010.”
Essentially, the Act aims to make rights simpler by bringing together nine pieces of legislation and creating a list of “protected characteristics” on which it is unlawful to discriminate: age; disability; gender; gender reassignment; race; religion; sexual orientation; marriage; and maternity. One of the most significant changes is the new ban on questions about a prospective employee’s health at first interview stage.
The Act also protects people from being discriminated against and harassed because of a disability they do not personally have.
A mental impairment includes mental health conditions (such as bipolar disorder or depression), learning difficulties (such as dyslexia) and learning disabilities (such as autism and Down’s syndrome. “Note that Asperger’s syndrome, ME, and chronic fatigue syndrome have all been held to be capable of being mental and/or physical impairments,” says Syder.
Employers have a legal requirement to make reasonable changes to the way things are done and while previously adjustments to premises and to policies, practices and procedures had to be made by service providers only where it would otherwise be “impossible or unreasonably difficult” for a disabled person to use the service now, under the new Equality Act, adjustments must be made where disabled people experience a “substantial disadvantage”. This means that employers may have to make more adjustments.
Understanding mental health
So how can HR professionals properly understand mental health, how can they ensure that they have robust policies in place, and what benefits will that bring to the organisation?
“There are many forms of mental health issues that employers might have to deal with,” says Angela Baron, engagement and organisation development adviser at the Chartered Institute of Personnel and Development. “The most common of course is stress but figures show that a significant and growing proportion of the population will receive treatment for depression at some point during their working life, ranging from mild and transient bouts of mild depression to more severe forms such as bipolar disorder.”
Nick Bason, director of policy and communications at the Employers’ Forum on Disability, agrees. “I think one of the issues is that mental health is less understood that physical impairment,” he says. “There is often a lack of understanding of mental health issues plus an assumption that it can be immediately very serious.”
Contributing to this is a wider uncertainty about the types of conditions that people can have and the adjustments that may need to be made. “A lot of issues are long term and can fluctuate in severity,” says Bason, “from depression and bipolar disorder to more severe conditions such as schizophrenia.”
While Bason agrees that HR managers have a legal duty to make sure that they do not discriminate against people with mental health issues, he believes there is a wider social and moral responsibility, even within the workplace.
“Eating disorders and alcoholism are not covered by the Equality Act,” he points out, “but often linked to symptoms of things that are covered. But I don’t think that employers should get too hung up about what is and isn’t covered – it’s about doing the right things for your staff.”
“Because discrimination against people with mental health issues is common many choose not to disclose problems during the recruitment process. Most mental health conditions are treatable and with the proper support should not preclude employees from making an effective contribution.
“Access to confidential occupational health support, coupled with a policy on how the organisation will deal with all health issues ensuring fairness and promoting health at work, can help to spot potential problems early and provide support before they escalate. Lack of a policy which promotes support and fairness of treatment may lead to employees trying to hide problems or disguise them which might compromise their own safety and that of others.”
Advantages of a robust mental health policy
If one of the obvious benefits of having a robust mental health policy in place is avoiding legal risk, there are many other advantages.
“Such an initiative demonstrates that the organisation recognises and accepts that mental health is an important issue and emphasises the organisation’s commitment to promoting the mental health of its workforce,” says Baron.
“It also sends a message to staff that the employer cares and will treat people fairly,” continues Bason, “and this is just as important for non-disabled employees to see. It furthers the reputation of the company and therefore gives it a competitive edge and by doing so, helps attract and retain the best staff.”
There are, though, practical steps that employers need to make to ensure that they are carrying out their mental health duties.
Baron says: “It is important that managers do not have false perceptions of mental health that may prompt them to take inappropriate action which may result in litigation or compensation claims. As employers have a duty to make provision for emergencies that may affect the health and welfare of their employees it is essential to recognise the needs of all disabled employees, irrespective of the disability.
“Employers should also carry out a risk assessment to ensure they are not exposing employees to unnecessary stress. As part of this, it may be desirable to educate managers to spot potential problems earlier to ensure employees receive the right support but also to ensure they are aware of what action to take in seeking advice.”
And although, under the Equality Act, employers cannot ask employees about the state of their health – mental or otherwise – a lot of the day-to-day management of issues comes down to simply being a good manager.
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So it’s important, Bason believes, for companies to train managers: “Give them the confidence to have sometimes difficult conversations. They need to know, if someone has to go home at short notice, ‘what can I say to them, when can I contact them,’ and this can be agreed under a tailored adjustment agreement.
“The employee doesn’t have a duty to disclose but if they feel the condition might affect their work then they can agree a protocol. Any good employer will have a conversation with staff, to support them to do the job to the best of their ability. The skills involved in being a good manager of mental health issues are the same skills as being a good manager across the board.”
