Brachers Bitesize: Mental Wellbeing

Statistics

Mental Wellbeing in the workplace can have a huge impact on business. Statistics from Mental Health First Aid England show that almost half of employees (46%) say they’ve worked in recent months despite not feeling physically or mentally well enough to perform their duties and one third of employees expect or would like more support for the mental wellbeing from their employers.

Statistics also indicate that investing in the mental wellbeing of employees can be financially beneficial for employers. For every £1.00 spent by employers on mental health interventions they could get back £5.30 in reduced absence, presenteeism, and staff turnover. Whilst 81% of workplaces have increased their focus on employee mental health which is a positive sign, 36% of employers take a more reactive, rather than proactive, approach to implementing support for their employees.

Duties of the Employer

Employers are under several obligations in respect of the mental wellbeing of their employees. An employer who fails to meet their duties with an employee who is suffering with poor mental health or otherwise, could find themselves at risk of a potential claim. The obligations on an employer include, but are not limited to the following:

Implied and Common Law Duty of Care

An employer must do all they reasonably can to protect their employees’ health, safety and wellbeing at work. This includes mental health which must be treated as equally important as physical health.

The case of Walker v Northumberland County Council 1995 confirmed that there was no reason why the risk of psychiatric damage would be excluded from the scope of an employer’s duty to provide the employee with a reasonably safe system of work and to take reasonable steps to protect them from risks which are reasonably foreseeable.

An employer can comply with the duty of care in the following ways:

• Providing a safe working environment
• Carrying out risk assessments and taking action if needed
• Taking all reasonable steps to protect employees from bullying and discrimination
• Taking steps to help prevent work-related stress

Implied Duty of Trust and Confidence

The duty of trust and confidence is mutual, and requires employers and employees to:

• Behave in a way that means they can trust each other
• Treat each other with respect
• Not behave in an entirely unreasonable way

Employers should be aware that if an employee is suffering from poor mental health and is not treated reasonably or with respect, for example requests for support being refused, this could lead to a breach of mutual trust and confidence.

Bereavement

There are specific rules regarding bereavement that employers should be aware of. Employers must be sensitive to what each employee may need when dealing with the death of a person close to them and recognise that grief affects everyone differently.
Anyone legally classed as an employee has the right to time off if:

• A dependent dies; or
• Their child is stillborn or dies under the age of 18

A dependent could be a husband, wife, civil partner or a parent. The law does specify an amount of time that can be taken off by an employee if a dependent dies, it simply states that the amount should be ‘reasonable’. Furthermore, there is no legal right for this time off to be paid, however most employers often offer pay for a period of time.

The law treats the death of a child (a child that is stillborn after 24 weeks of pregnancy or dies under the age of 18) differently. In such circumstances an employee has the right to 2 weeks off. This is called ‘Parental Bereavement Leave’ and is also known as ‘Jack’s Law’. This leave can be taken in the 56 weeks following a child’s death. Employees are also entitled to 2 weeks’ statutory parental bereavement pay if the various conditions are met.

Employers may have their own bereavement policy, which might offer more time off/bereavement pay, but it is not possible for an employee to be offered any less than stated above.

Signs of Poor Mental Health

An employer should be aware of the signs of poor mental health so they can be proactive in providing support to employees. Common signs of poor mental health include:

• Appearing tired, anxious or withdrawn
• Increase in sickness absence or being late to work
• Changes in the standard of their work or focus on tasks
• Being less interested in tasks they previously enjoyed
• Changes in usual behaviour, mood or how the person behaves with the people they work with

What Employers can do to Support Mental Wellbeing

Culture and Awareness

Employers should promote greater understanding of mental health and aim to create an open culture and increased awareness. If employees feel comfortable discussing mental health, they likely will ask for support readily. Changing the attitude of a workplace can of course, take time. Measures an employer could take to create a more open culture include publicising the businesses commitment to promoting positive mental health and ensuring managers and team leaders lead by example.

Training

Everyone within the workforce has a responsibility when it comes to mental health and training should be tailored to suit the individuals’ responsibilities. For example, a HR employee’s responsibilities will differ from that of an employee.

The National Institute for Health and Care Excellence and Public Health England recommend that employers should consider the following when delivering training to the workforce:

• Information about mental wellbeing
• How to identity early warning signs
• Any available resources
• Awareness of the stigma associated with poor mental wellbeing
• Ongoing monitoring in the workplace
• How to have those conversations about wellbeing with an employee

Mental Health First Aiders

There is an expectation that an employer will have first aiders that deal with physical health. We should have the same expectation regarding support with mental health. Mental health first aiders can aid a more open workplace by discussing mental health and they also may be able to identify, support and listen to those suffering from poor mental health. They are not however a replacement for professionals or treatments.

Financial Wellbeing and Employee Assistance Programme

Along with mental health, ‘money health’ can be seen as a taboo topic which can leave people to suffer in silence. Companies should promote conversations surrounding finances and the management of them. Employee Assistance Programmes are a benefit provided which can give employees 24-hour access to confidential support, professional advice and short-term counselling to help dealing with personal and work related problems impacting their physical and mental health.

Occupational Health

Occupational health experts can provide support not just when someone is off sick, but where there may be an ongoing issue or as a preventative measure. They can provide an insight into absence issues, support the individual in question and provide them with guidance for seeking further support and suggest any reasonable adjustments to consider.

Occupational Sick Pay

Occupational sick pay can be a benefit to businesses in many ways when sickness absence is managed effectively. Government research shows that 28% of employees provide occupational sick pay, although when asked 59% of employers agree there is a business case for providing it. Employees that attend work when they are ill are not productive and usually feel unwell for longer and can spread illness to others reducing their productivity too.

Policies

There is no legal requirement to have a sickness absence policy, however a clear policy and procedure is beneficial. In terms of mental wellbeing, a policy can provide guidance on how to report sickness absence, what evidence is needed and entitlement to occupational sick pay if this is offered.

If an Employee is Off Sick with Poor Mental Health

There are several things an employer can and in some cases should do, in a situation where an employee is off sick with poor mental health:

• Obtain a Fit Note – An employee can self-certify for the first 7 days of their absence but after that, a fit note will be required should the employee remain absent. They can be issued by nurses, doctors, pharmacists amongst others. An employee can return to work before the expiry of their fit note, however, an employer should always take steps to ensure it is appropriate and that the return won’t worsen matters.
• Pay Statutory Sick Pay – The current rate of SSP is £109.40. An Employer cannot pay an employee any less but can pay them over and above. The entitlement to SSP lasts for up to 28 weeks of the year.
• Agree Communication – Clear communication with an employee is important to ensure both the employee and employer are informed and can plan ahead.
• Arrange Occupational Health – Occupational Health is a good tool to help support an employee’s mental health and wellbeing.

Potential Consequences when an Employer Gets it Wrong

An employee may bring a claim, the basis of which will depend on whether:

• The employer caused or was responsible for the employee’s sickness due to mental ill health
• The employee is classed as disabled under the Equality Act 2010
• The employer ultimately decides to dismiss the employee

There is no standalone legal claim called ‘breach of duty of care’ or ‘breach of trust and confidence’. However, there are likely to be other legal claims for situations where an employer breaches these duties.

Potential claims include:

Personal Injury

If the employer caused or was responsible for the employee’s sickness, this could amount to a personal injury claim.

Disability Discrimination

By law (the Equality Act 2010), someone with poor mental health can be considered to be disabled if:

• It has a ‘substantial adverse effect’ on their life – for example, they regularly cannot focus on a task, or it takes them longer to complete tasks.
• It lasts, or is expected to last, at least 12 months.
• It affects their ability to do their normal day-to-day activities – for example, interacting with people, following instructions or keeping to set working times.

If an employee is disabled, which is one of the nine ‘protected characteristics’, because of poor mental health, employers must be careful to avoid:

• Direct discrimination – Treating them less favourably because of disability.
• Discrimination arising from disability – Treating them unfavourably because of something arising out of their disability, unless that treatment is a proportionate means of achieving a legitimate aim.
• Indirect discrimination – Applying a provision, criterion or practice (PCP) that puts the employee (and other persons with the same disability) at a particular disadvantage, unless that PCP is a proportionate means of achieving a legitimate aim.
• Failure to make reasonable adjustments where these would help overcome a substantial disadvantage. This duty is unique to the protected characteristic of disability.
• Victimisation – Dismissing or subjecting an employee to detriment because they have done a “protected act” such as complaining about discrimination or supporting another employee in their complaint.
• Harassment – Unwanted conduct related to disability, which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Unfair Dismissal

Qualifying employees (those with over 2 years continuous service), have the right not to be unfairly dismissed under sections 94 and 108 of the Employment Rights Act 1996. An employer can defend a claim of unfair dismissal successfully if they can establish that the reason for the dismissal is one of five potentially fair reasons (which includes capability, conduct and some other substantial reason (SOSR)) and the Tribunal concludes that the reason for dismissal was fair in all the circumstances.

When dismissing an employee on the grounds of capability, conduct or SOSR it is important the employer acts reasonably. This means that the employer must follow a fair procedure and the principles governing procedural fairness in cases of dismissal for genuine ill-health are those established by case law.

The leading case on fairness in ill-health dismissals made clear that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss (East Lindsey District Council v Daubney).

The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss:

• The nature of the employee’s illness
• The prospects of the employee returning to work and the likelihood of the recurrence of the illness
• The need for the employer to have someone doing the work
• The effect of the absences on the rest of the workforce
• The extent to which the employee was made aware of the position
• The employee’s length of service

An employer should familiarise themselves with the duties owed to their employees in relation to mental health and should be aware of claims that may arise should they not fulfil their obligations.

Further support

If you require any further guidance or support on the issues covered in this article, please get in touch with our Employment team today.