Do employers have legal obligations concerning the mental health of their employees?
In short, yes. Employers have a legal obligation to ensure the health and safety of their employees at work and to provide a safe working environment for their employees. During the current climate, this includes when the employee is working from home.
If an employee has a mental health issue it must be taken seriously as employers have a duty of care for the health and safety of its employees and that includes for their mental health.
Employers must do all they reasonably can to support their employees’ health safety and well-being; this includes making sure working environments are safe and protecting staff from discrimination and carrying out the appropriate risk assessments.
Employers should be conducting the following risk assessments to protect employees both physically and mentally in the workplace;
- COVID- 19 risk assessments (legally required)
- stress risk assessment (legally required)
- DSE risk assessments (legally required)
- well-being or mental health risk assessments (not legally required, but at Thrive we strongly believe it should be a legal requirement, and we have a petition on that here)
Most mental health conditions are likely to satisfy the legal definition of disability under the Equality Act 2010, as such conditions have a substantial and long term impact on the individuals’ day-to-day life. This means those with mental health conditions are likely to be protected from disability discrimination, and be entitled to reasonable adjustments from their employer.
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It’s important to remember that many people with mental health conditions will also be undergoing therapy and taking medication. When considering whether they meet the disability definition you must also consider what their symptoms are and what the effect their condition would have on their day to day activities if they weren’t taking medication. This is called deduced effect; the Tribunal considers the employee’s position when not taking medication and would they be considered to be disabled in this state.
Mental ill-health can therefore be considered a disability if it meets the criteria set out in section 6, this is a relatively low threshold, therefore if you are not sure always go with the fact that they are likely to be considered legally disabled by a tribunal and make the necessary reasonable adjustments in any event.
so as you can see – employers have an array of legal obligations to employees around their mental health, which often they do not fully appreciate.
What can employers do to support their employees’ mental health when working from home and returning to the office?
Even though allowing flexibility in working hours and allowing employees to work from home has many benefits to mental health, some employees may suffer from heightened stresses whilst at home. That may be due to the domestic demands of caretaking for children, some might struggle alone at home, and some may struggle to switch off and become overwhelmed by work. Employers should ensure they communicate with their employees effectively so they do not feel isolated and continue to be supported in their job role.
If your employees are working from home, effective communication is important to ensure you are checking in on your employees regularly. Signs of a person’s mental health declining can be hard to notice whilst working remotely so it is even more important to keep connected with your team. Employers should ask their employees if they think the way you are communicating is working for them and ask for their suggestions; this might be phone calls, video calls, emails, or even WhatsApp.
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At Thrive we use what’s app groups and voice note for the fee earners to discuss legal matters and to keep the conversations flowing– it almost has that office vibe. It really saves time on long calls and emails as each fee earner can pick it up when they are ready and still be involved. It also doubles up as dictation which the junior staff find really helpful as they can play it back when drafting documents.
Good communication ensures that employers know the amount of work the employee is doing and can keep an eye out for heightened levels of stress or a decline in their mental health. We encourage you to be proactive in your approach to your employee’s mental health, as managers, HR managers or directors, you should learn how to spot risks to an employee’s mental and know how to help individuals. For managers, become a Mental Health First Aider or a Mental Health Champion may help them to spot the warning signs of declining mental health, and have sufficient know-how to be able to refer those employees to specific services to assist them.
When employees return to the office, employers should not ignore the effects the current climate has had on employee’s mental health; the stress, depression, social isolation or the struggles they may have faced with family being ill or even passing away. Employers should encourage conversations about mental health and how everyone is coping. This can be done in a form of a return to work meeting which can be an informal meeting to introduce the employee back to work and to see if they feel like they need any support to get back to work in the office. By proactively speaking about mental health and asking employees if they need support, you not only show that you have an open and safe environment towards mental health, but it shows that you understand that an employee’s well-being affects their performance. Where performance is poor after a return to the workplace, it’s worth considering why that person is underperforming: have you asked them if there is anything that is affecting their work?
An employer should also ensure their managers are provided with the support they need as if they are supporting other employees, they may need some support themselves. No matter what your title is or what your salary is, everyone needs support to look after their wellbeing.
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Check out the Form Score to keep track of you and those you work with are feeling in these tough times
What action can employees take against their employer if they feel they have put their mental health at risk?
Employees should first approach their employer and ask for reasonable adjustments if they feel their mental health is at risk at work, although it is not necessarily an employee’s duty to bring this the employer’s attention. We believe that employers should be conducting mental health and wellbeing risk assessments to ensure their employee’s mental health is not at risk.
Employers should also be noticing ‘clues’ which indicate an employee is struggling, for example, if an employee is making spelling and grammar mistakes regularly this could be because of learning disability you may not beware of and an employer should recognise these signs and act on them.
Employees can raise a grievance outlining their employers conduct if it is putting their mental health at risk. This should be dealt with seriously as employers can be liable for personal injury or stress at work claims if they don’t comply with their duties and effectively cause a decline in an employee’s mental wellbeing.
What’s an example of disability discrimination?
One common example of disability discrimination is where an individual is dismissed or demoted because of long-term sickness or performance issues which are directly related to their disability.
If those issues arise because of their disability, which they often do, then the dismissal or demotion may lead to a claim for disability discrimination contrary to section 15.
In this situation, the employer must be able to show they have explored making reasonable adjustments and be able to objectively justify the dismissal for a legitimate reason. These types of claims can lead to Tribunal claims even where the individual has less than two years’ service as disability discrimination claims do not have the same eligibility criteria as unfair dismissal and individuals can claim loss of earnings and injury to feelings as a result of these types of dismissals.
What are reasonable adjustments?
Reasonable adjustments should be made for all employees where they are likely to be disabled under the Equality Act 2010. The adjustments should allow the individual to function in their role as they didn’t have the disability or at least alleviate some of the disadvantages they face.
Some examples of reasonable adjustments could be;
- adjusting start and finish times;
- allowing homeworking;
- providing a quiet space to work;
- increasing support and training regarding certain tasks;
- changing the way you communicate to suit the disabled person;
- removing something from the workplace, for example, bright lights above the employee’s workstation;
- providing something in the workplace such as a screen to reduce the noise and distractions
- providing extra or specialised equipment such as ear defenders
If an employee asks for reasonable adjustments and you don’t consider that as a business is this something that you can accommodate, then you must ensure that you can objectively justify why you cannot accommodate the adjustment. The reason cannot simply be because the business cannot afford it; there must be other reasons to successfully defend any allegations of failure to make reasonable adjustments. There should be a paper trail of you looking into the adjustment and any suitable alternatives and you should keep a record of this.
When it comes to reasonable adjustments, the best way to approach this is to have a sit-down meeting with the individual and sometimes any medical professionals (eg. their consultant or specialist) which might be suitable. In the meeting, you should look at their role and discuss the issues they have with their duties due to their disability and agree on reasonable adjustments which can help them moving forward. Where an individual is unsure of what adjustments might assist them, it might be sensible to instruct an occupational health therapist to support the individual in their understanding of their role and what adjustments might be necessary to alleviate any detriment in the workplace. When you do this, ensure you send over clear instructions including a job description to the occupational therapist.
If you want help putting adjustments in place get in touch with our specialist team who can guide you through what can be a very difficult process to make sure you get it right contact enquiries@thrivelaw.co.uk
If an employee believes the employer has failed to make reasonable adjustments or treated them less favourably because of their disability, then they may be able to also pursue claims of disability discrimination in the Tribunal which can be very costly.
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Employers should treat every person’s situation individually and not assume every person needs the same reasonable adjustments, even where they have the same disability.
Do you know what to do when it comes to your employees’ mental health?
Do you have high rates of sick absences? Do you struggle to keep employee’s wellbeing at the top of your agenda?
Thrive Wellbeing is a mental health programme helping businesses to change their approach to employee mental health. Our 12-month wellbeing programme package is dedicated to helping you and your team champion mental health and offers something for everyone. The Thrive Wellbeing Programme has various online modules to complete, with guides for management, template policies, forms and emails, all ready to download and use in your business. As well as all these resources at your fingertips, you’ll receive regular email and video updates to help you keep the conversations going, and you’ll have the opportunity to take advantage of 1-2-1 support from a dedicated, qualified solicitor.
This is an online interactive platform to create a healthy and inclusive workplace, it offers expert advice and support on mental health in the workplace! The programme has outstanding long-term benefits for businesses in terms of promoting a healthy and barrier-free workplace leading to reduced sickness absences and increased productivity amongst your staff!
Please get in touch here to invest in your business and your employees!
Disclaimer
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on enquires@thrivelaw.co.uk
By Jodie Hill
