Mental health in the workplace – a focus on disability and legal issues

Brachers recently held a webinar in partnership with Kent CIPD focussing on mental health within the workplace. Speaking at the event, Brachers’ employment law experts Louise Brenlund and Sarah Wimsett discussed potential legal risks that can arise from businesses not correctly addressing their employees’ wellbeing, with a focus on disability discrimination and health and safety issues.

This article summarises the discussion points covered in the webinar and the legal obligations for employers.

What are the benefits of addressing your employees’ mental health?

Poor mental health can lead to:

• Low job satisfaction
• Lack of motivation
• Workplace disputes

By addressing these matters and recognising and supporting good mental health, you are likely to:

• Minimise the risk of successful claims against your business
• Have happier staff, which can lead to higher productivity
• See less staff absence as staff are healthier and happier
• See improved morale
• Create a supportive environment
• Make your business more attractive to job seekers
• Retain staff for longer and have a lower staff turnover 

As an employer, what are your legal obligations to support your staff?

• Mental impairment covers a wide range of mental health issues. Examples include stress, depression, anxiety, bipolar disorder, schizophrenia, Asperger’s Syndrome Chronic Fatigue Syndrome (ME).
• Such impairments may be classified as a disability under the Equality Act 2010. This is if the impairment satisfies the Act’s definition of being a physical or mental impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.
• If the mental impairment is a disability, this is a ‘protected characteristic’ under the Equality Act 2010.
• In such cases, an employee is protected from disability discrimination. This includes direct discrimination, indirect discrimination, discrimination arising from disability, harassment, and victimisation. As an employer you have a duty to protect staff from discrimination under this law.
• If an employee is at a substantial disadvantage by an employer’s provision, criterion or practice (PCP), a physical feature of the employer’s premises or an employer’s failure to provide an auxiliary aid, the employer should make reasonable adjustments.
• There is no definitive list of adjustments. A reasonable adjustment might include:
  • Reduced working hours
  • Flexible working
  • Period of unpaid leave

How do you ensure a safe working environment?

•  Employers have a common law duty (following legal precedent set by the courts) to take reasonable care for the health and safety of their employees. It is important to note that this covers both physical and mental health.
• Employers also have a duty to maintain trust and confidence with employees. This means that you must not without reasonable and proper cause behave in a manner calculated or likely to destroy, or seriously damage, the relationship of trust and confidence. This is likely to involve treating employees with dignity at work and dealing with complaints fairly and seriously.
• Legislation, including the Health and Safety at Work Act 1974 and The Management of Health and Safety at Work Regulations 1999, outline separate responsibilities for employers.
• Key requirements include risk assessments (which can include stress at work risk assessments), appointing a competent person to oversee general health and safety, an up-to-date health and safety policy, and training.
• Risk assessments should be carried out in consultation with a union safety representative where recognised. If you do not have a union representative, you have a statutory requirement to consult with your employees or their elected representatives.
• Be aware that significant findings from any risk assessments must be written down if you have more than five staff.
• In relation to COVID-19, government guidance recommends that you publish your risk assessment on your company’s website, and that employers with over 50 employees will be expected to do so.

Risks to your business if you do not comply

Some breaches of safe working legislation referenced above would be considered a criminal offence. Although this article does not cover these issues in detail, please be aware of this.

If you breach the legal obligations outlined in this article, you are at risk of potential successful claims against your business. These include:

• Breach of contract
• Unfair dismissal/ automatically unfair dismissal
• Disability discrimination
• Other claims could also be brought for personal injury where there is a breach of duty of care or under the Protection from Harassment Act 1997.

Successful claims can be costly for a business. Not only in the time it takes to deal with the matter and defend a claim, but also any damages that might be awarded.

For example, in a successful disability discrimination claim, a compensation award has no cap. The highest award for a protection from harassment claim was the case of Green v DB Group Services (UK) Limited [2006] IRLR 764.

In this case, Helen Green, a company secretary assistant, claimed that she was subjected to a campaign of mean and spiteful behaviour by four women who worked near her, and a male co-worker which the court found to be domineering, disrespectful, dismissive, confrontational and undermined and belittled her in front of others.

Although Ms Green complained, nothing effective was done to deal with these issues.

Ms Green brought proceedings claiming damages for personal injury, and was awarded £850,000, which included £639,000 in respect of future losses. The amount awarded reflected the fact that she had two major episodes of a depressive disorder which had effectively resulted in the loss of her career.

Top tips for employers

• There is lots of guidance and support available for employers on the issues covered in this article. We recommend referring to ACAS’s selection of health and wellbeing advice. These include:
• • Coronavirus and mental health at work
  • Supporting mental health in the workplace
  • Using occupational health at work

• Consider holding regular mental health awareness days which promote a healthy workplace culture of discussing personal wellbeing. This can help employees dealing with mental health issues feel like they can open up and seek any necessary help they need.
• Provide training for existing and new staff members to help to understand how to identify mental health issues at an early stage and deal with such matters. This can facilitate resolution of issues before further deterioration. This might include appointing mental health first aiders or wellbeing champions.
• Look at providing an anonymous email address where employees can contact HR to discuss any issues. This creates an open line of communication until hopefully the employee feels comfortable enough to reveal their identity so the relevant support and potential adjustments can be set up. This may be particularly useful during the COVID-19 pandemic, with many employees working from home.
• Implement a wellbeing policy.
• Importantly, keep practices and their effectiveness under review. This should be an on-going process, not a form filling or box ticking exercise.

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.