Theresa May recently pledged to tackle the stigma around mental health problems with a host of new initiatives. However, HR professionals need to consider not just how to manage employees once they become ill, but what’s behind their health issues too. Howard Hymanson and Charlie Thompson from law firm Harbottle and Lewis look at the potential benefits.
Last month, the Prime Minister unveiled plans to transform mental health support in the workplace – the latest public recognition of the rising tide of employees suffering from mental health and stress at work issues.
It remains to be seen whether or not this latest initiative will actually yield any tangible developments to assist HR professionals, who are called upon with increasing frequency to manage the challenges posed by mental health problems.
HR will always need to consider any legal risks, but these often tend to focus on potential disability discrimination issues.
Given that no qualifying service is required and there is no cap on compensation if a disability discrimination claim was successful, this is understandable.
Furthermore, disability claims tend to focus upon how the employer dealt with the employee after they became unwell, considering questions such as have reasonable adjustments been made? Has there been unfavourable treatment because of something arising in consequence of disability? Has there been less favourable treatment because of disability?
Although it is important that HR keeps these questions in mind when considering how to manage mental health and stress at work issues, too often insufficient attention is given to the reason why an employee may have fallen ill in the first place.
Duty of care
Legally, it has been clear for many years that all employers have a duty of care to avoid causing “psychiatric injury” to their employees.
Just as an employer can be held liable for causing physical injuries through unsafe working conditions, so too can liability arise for personal injury in the High Court, as a result of causing an employee to sustain psychiatric injury.
However, this legal duty, in our experience, is not always fully understood or acted upon by HR professionals.
HR can sometimes be slow to recognise that occupational stressors can be a key factor in causing an employee to develop a mental health issue, or in exacerbating an existing condition.
This is surprising, as intense work pressure, excessive working hours and difficult working conditions, such as being subject to bullying or an unreasonable performance/disciplinary management process, can clearly have a catastrophic impact on an employee’s mental health. During periods of economic uncertainty, even robust employees can be at risk.
And it is not just mental health that is at risk in these situations, as being subjected to high levels of stress can also give rise to physiological disorders – The Lancet recently reported that constant stress on the brain is linked to a higher risk of heart attack, for example.
Laying the blame
As the link between work and mental illness continues to gain even greater public recognition, there is also a growing trend of employees seeking to blame their employer for breaching the duty of care to avoid causing them psychiatric injury.
However, a major area of difficulty for any employee bringing such a claim is persuading a judge (who must rely on their own experience and assessment of human nature) that the injury was reasonably foreseeable.
The court would need to ask questions, such as would a reasonable employer have foreseen that the employee was at risk of developing a psychiatric illness because of work-related factors? If they cannot pass this foreseeability test, the claim will fail.
Mental health among the working population is an increasingly accepted trend. So, as the Prime Minister calls upon employers to offer employees even greater support, judges may be more easily persuaded that psychiatric injuries are reasonably foreseeable.
Potentially, this could lead to more employees bringing and winning high value personal injury claims in the High Court, and unwary HR departments may be in for a shock.
What should HR departments do? Here are some tips:
- Establish preventative measures, such as comprehensive training, return-to-work and exit interview programmes.
- Proactively work with occupational health professionals to obtain practical recommendations to adopt and put into practice.
- Look out for trends in illness and sickness absence within your workforce. These may identify high risk managers and departments, and you can then take appropriate measures to address any issues.
- Ensure that a member of HR is accountable for being in contact with an employee who is developing a mental health issue at work. Touch base with them regularly, in an appropriate manner, as this can have a positive impact and reduce the scope for an individual to become embittered and more likely to bring a claim.