The law and mental health in the workplace

Employers must get to grips with mental health in the workplace with politicians focusing on the issue and recent case law showing that employers are falling to understand their responsibilities. Kenny Scott, a senior associate at Shoosmiths, offers guidance.

The term “mental health” itself is not a legal definition but refers to a continuum that includes emotional well-being, mental health conditions and mental illnesses. Mental health, like physical health, can fluctuate but everyone’s experience of mental health is different and unique to them.

It would now seem that as a society we recognise the need to take more proactive steps to invest in addressing and improving mental health and the benefits of doing so. In some cases, employers will be legally obliged to take certain steps if the legal definition of disability is met, as considered further below.

It is worth pausing to reflect on some of the headline statistics on mental health in the workplace.

  • One in six workers suffer from anxiety, depression and unmanageable stress each year.
  • 74% of people with a mental health problem for more than a year are out of work.
  • 55% of those with depression or anxiety for more than a year are out of work.
  • 49% of workers would not be comfortable disclosing a mental health issue at work.
  • Workplace mental ill-health costs employers around £26 billion per year.
  • In 2015, 18 million days were lost to sickness absence caused by mental health conditions.
  • Those with a severe and enduring mental illness are exposed to premature mortality rates of up to 15-20 years.

Even this small selection of statistics is pretty harrowing and a reflection of the work to be done as a society and in business circles in promoting mental well-being. This issue is now gaining more political attention.

Political landscape

In January 2017 the Prime Minister commissioned a review by Lord Stevenson and Paul Farmer (CEO of Mind, and Chair of the NHS Mental Health Taskforce) into workplace mental health support. The Conservative Party’s general election manifesto aimed “to transform how mental health is regarded in the workplace” and to extend protection for workers with mental health problems acknowledging that there is not enough support at hand at the moment.

The Stevenson/Farmer review is tasked at looking at recommendations around extending protection from discrimination in the workplace on the grounds of mental ill health, which is episodic and fluctuating. Health and safety regulations are also to be reviewed to provide for first-aid training, and needs assessments for mental health as is the case for physical health risks.

The Labour Party manifesto also included mental health proposals, but not specifically in relation to mental health in the workplace.

The Scottish Government has recently published its Mental Health Strategy for 2017 – 2027. In the introduction to that paper, Maureen Watt MSP (minister for mental health) explains that the guiding ambition is that “we must prevent and treat mental health problems with the same commitment, passion and drive as we do with physical health problems.”

It appears that a similar gap has emerged in the employment sphere and indeed disability discrimination law. Much of the focus in the 20 years since the Disability Discrimination Act in 1995 (since superseded by the Equality Act 2010) has been on adjustments to physical premises and dealing with physical conditions occasioning long-term sickness absence.

Practical steps

Before looking at the legal landscape around mental health, what are the practical steps that employers can take to promote mental well-being?
A few examples are set out below:

  • introducing a dedicated counselling service or helpline for mental health issues;
  • training on mental health issues including mental health first aid;
  • using positive language;
  • fostering a culture of support and openness so that those needing help feel reassured to seek help without any stigma being attached to them;
  • seeking advice and resources from the charity Mind and similar organisations;
  • adopting a mental health toolkit such as those provided by Public Health England, Business in the Community and the Samaritans, including advice on how to prevent suicides;
  • adopting a programme on physical activity such as the one from the Scottish Association for Mental Health, developed and backed by the Scottish Government;
  • using resources from the Department for Work and Pensions Access to Work service, which are available for mental health support;
  • participating in initiatives such as Time to Change (500 employers signed up already) and in Scotland, See Me and the Scottish Business Pledge; and
  • reviewing the company’ absence policies and keeping-in-touch arrangements.

Legal landscape

The courts have made it clear that no occupations are intrinsically dangerous to mental health. That said, recent studies have reflected the higher incidence of difficulties in certain sectors.

From a common law personal injury perspective, the key focus is on whether or not the harm suffered was reasonably foreseeable and whether or not the employer took reasonable steps to avoid it. Providing a counselling service and involving occupational health can help in that regard. Employers also need to be mindful of claims under the Protection from Harassment Act 1997 (despite the law originally being intended to deal with stalking) where actions can be brought for up to six years (three in Scotland) and there is no employer’s defence that it took reasonable steps.

The legal definition of disability under the 2010 Act includes references to “mental impairments”. Someone with a mental impairment that is long-term and has a substantial adverse effect on normal day-to-day activities will be protected.

For quite some time now the impairment has not required to be clinically well recognised nor does it need to be caused by an illness. Rather, the focus is on the effect of the impairment. “Long-term” means more than 12 months, likely to last more than 12 months, or likely to last for the rest of the person’s life. Two related impairments that last six months each would meet the definition of long-term. “Substantial” is a low hurdle and means more than minor or trivial. “Normal day-to-day activities” includes normal day-to-day work activities.

Certain conditions are excluded, such as addiction to alcohol or any other substance, but may be covered if accompanied by an underlying condition such as depression which meets the definition. For those dealing with such issues, the Office for Disability Issues has produced excellent guidance on matters to be taken into account in determining disability status. Stress, in and of itself, is seen as a reaction to work and not a disability as it is not a mental impairment.

Employers must make any reasonable adjustments to remove a substantial disadvantage suffered by someone who is disabled under the 2010 Act compared to non-disabled people. The involvement of suitable medical opinion will generally be necessary to properly assess the effectiveness and scope of any possible or proposed adjustments. It is also unlawful discrimination to treat a worker unfavourably because of something arising in consequence of their disability under s.15 of the 2010 Act. Recent decisions show that s.15 is being interpreted quite widely and provides a significant degree of protection to individuals. Employers can defend such claims by showing the treatment was a proportionate means of achieving a legitimate aim.

Much has been said in recent times about the stigma still attached, at times, to mental ill health. The 2010 Act protects someone who is unlawfully discriminated against because of a past mental illness that met the definition of disability even if there has been no recurrence and are currently no issues. The recommendations of the Stevenson/Farmer review on this issue are awaited with interest. Although a culture of openness and support is to be welcomed, employers need to be mindful of their data protection obligations as mental health details will be “sensitive personal data”.
Mental ill health does not equate to poor performance and some of the statistics referred to earlier suggest that employers are losing a lot of talented workers due to a failure to effectively manage mental ill health.

Employers also need to proceed with caution when faced with employees going on sickness absence leave due to stress, particularly in the face of disciplinary or absence management proceedings. Of course, employers need to be allowed to run their businesses and apply formal procedures, but to do so without understanding an individual’s particular personal and medical situation will rarely result in a good outcome and could expose that employer to various claims.

In situations where the legal definition of disability is not met, an employer should, of course, still act as supportively as possible.

From a legal perspective, it is worth remembering that the 2010 Act also protects individuals discriminated against because they are wrongly perceived to be disabled or because of their association with a disabled person. Employees may also consider resigning and claiming constructive unfair dismissal if they are insufficiently supported and can show a breach of the implied term of mutual trust and confidence between employer and employee.

A couple of recent cases provide some helpful insights into two discrete areas.

Recruitment procedures

In the case of the Government Legal Service v Brookes (EAT/0302/16), the Goverment Legal Service was found to have unlawfully discriminated against Ms Brookes by not adjusting its “fiendishly competitive recruitment process” which included a multiple choice Situational Judgement Test.

Ms Brookes had asked for an alternative format because she would be disadvantaged by the Situational Judgement Test because she had Asperger’s Syndrome. The Goverment Legal Service refused and Ms Brookes failed the test scoring 12 out of 22. The Employment Appeal Tribunal upheld claims for indirect discrimination and a failure to make reasonable adjustments.

Employers will need to be increasingly aware of the requirement to make reasonable adjustments to recruitment processes and comply with the restrictions around pre-employment health questions. To defend against indirect discrimination claims it is necessary to show both that there is a legitimate aim (in the Goverment Legal Service case this was finding the best candidates skilled in making effective decisions) and the methods used are proportionate, which Goverment Legal Service failed to establish.

Company policies

Employers defending disability discrimination claims often try to hide behind the fact that they were simply applying company policy and argue the policy has a legitimate aim and it is proportionate to apply that policy. That was the situation in Buchanan v The Commissioner of Police of the Metropolis (EAT/0112/16). Mr Buchanan was seriously injured responding to an emergency on his motorbike and then developed serious post-traumatic stress disorder.

The relevant police policy was argued to be justified, but that was the wrong question; it was the treatment of Mr Buchanan itself at each stage which needed to be justified and it was not.

The future?

Mental health seems to have been accepted into the mainstream political dialogue which can only be positive. Employers can benefit on many levels by focussing on their internal approach to mental health and drawing on ever-increasing levels of external expertise and resources. Those that don’t are going to be at a competitive disadvantage and exposed in many cases to disability discrimination claims.

Kenny Scott is a senior associate at Shoosmiths.

About kennyscott

Kenny Scott is a senior associate at Shoosmiths.

8 Responses to The law and mental health in the workplace

  1. Dr Ramesh 22 Oct 2017 at 9:15 pm #

    This was an impressive and thought provoking write up.I had to leave many jobs due to my mismanaged chronic depression.
    In India people do not have so much insight into mental health issues as you have expressed it.
    Our Indian culture despises mental health issues and that is why patients life become a hell here even if they are well educated and qualified.Such cultural attitudes towards mental health which are against the interests of the patients should be discarded.
    There is no commitment and compassion.They are not accountable either.No one.
    Mental health issues in accommodation,marriage,divorce,legal points against it,lack of proper treatment,lack of awareness about mental health,money problems all are linked to one another.Physical and sexual abuse even in public places are not reported because the patients are not empowered to do so.
    They are the children of the lesser god.

  2. Scotswhahae 2 Feb 2018 at 11:15 am #

    Fantastic article. Those with mental health challenges need our support and understanding in society. Employers need to move away from looking at employees as just bags of skills and move towards acceptance of the whole person and promote diversity not by what they say they do but what they action and value in the organisational culture.

  3. Andrew Hiblen 19 Feb 2018 at 11:57 pm #

    Brilliant

  4. Tracy 18 Jun 2018 at 12:28 am #

    My daughter has been off work with clinical depression since February and wants to try partime work.

    They have told her she can come in a week on two day next week 3 next 4 and following week 5. The do not offer parting positions!

    Under the mental health act can she demand partime position for the unforseable future.?

  5. Cheryl Roberts 11 Sep 2018 at 12:23 am #

    I was bullied by a member of staff when my daughter started feeling suicidal. She was eventually diagnosed after I threatened to report a member of the mental health team, that she had PTSD, but was later told she was misdiagnosed and has BPD. I reported this member of staff, but in the end they made me look like the bad guy…just to save my daughter from committing suicide.

  6. Enim 10 Nov 2018 at 9:37 am #

    Sadly directors of companies are failing to hold their staff accountable for mental health discrimination in the workplace whether it is derogatory comments, or unlawful conduct such as demotion, failure to implement reasonable adjustment preventing a return to work. If staff are allowed to conceal poor conduct in the workplace in a form which is non-compliant with the company’s regulator, the company can face investigation by the regulator.

  7. Andy 15 Nov 2018 at 11:33 am #

    I have long term depression and anxiety due to being unjustly suspended For 19 months. The lack of support on returning,I relapsed due to not getting my needs met,(trainning) due to many changes made since my absence. It is now three years since I have practiced my role,I feel I hav now lost my profession. If I was listened too and taken seriously I truly believe I would not be in this position at 60years old.

  8. Steven Harrison 3 Dec 2018 at 8:05 pm #

    I have been suffering with depression & anxiety for 20+ years. During the majority of these years I never had any absence from work & my work never suffered. Indeed I am a teacher & my results were amongst the best every year.
    I have had many substantial and severe problems in my personal life (an ex with a violent alcohol addiction/loss of a child at birth/18 month custody battle + being a single parent for 8yrs/the death of my ex & mum of my daughter recently .. being the tip of a very large ice berg) but these have never affected my performance at work.
    Three years ago there was a change of Head at school & soon after the appointment of a Director of Maths who happened to be a friend of the new Head. In effect my 2 line managers were friends. Between them they began a sustained attack on the way I teach, I fell from a respected, top performing member of faculty whose opinion was highly respected to someone who was being reported every time I disagreed with anything. I was in the Heads office seemingly every other day. As you can imagine on top of the depression (of which they were aware) it made my life unbearable and forced me on the sick.
    When I resumed work things got no better I was targeted even more. No matter what exhausting task I completed there was never praise & always some way I could have done it better. I was made to feel worthless & treated like someone that was rubbish at his job. I was patronised & humiliated constantly.
    Throughout this time on my endless meetings in the Heads office I kept stressing that I had a very poor quality of home life and was constantly exhausted. My ex finally killed herself with 3 litres of vodka almost 2 years ago & I thought the penny had actually dropped as I was now single-handedly bringing my daughter up with no mother. As an example of the crass treatment I received, 1 week after returning to work (my mind all over the place) Mothers day was approaching the coming Sunday. The Director of Maths (knowing my frame of mind was not 100%) decided this was a good time to remind me I had a deadline for a certain part of The Scheme of Work. I just looked & thought, ‘this isn’t going to end’.

    Cutting this short as it continues for another 2 yrs, even knowing of my disability, this & subsequent SENIOR LEADERS have treat me appallingly to the point where i have become so ill i cannot see no future & feel i may never teach again.

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