28th August 2019

Are Your Employees ‘Thriving at Work’ Or Is Their Mental Health At Risk?

The holiday season invariably asserts pressure on co-employees to cover and fulfill the roles of other staff, which if not managed carefully may increase the stress levels of the individual, affecting mental health and well-being. Society has recognised the requirement to be more proactive in the workplace when supporting mental health issues; one in six workers suffer from anxiety, depression or unmanageable stress incurring a cost to business in excess of £30 billion per year.

The Stevenson/Farmer review commissioned in 2017 by the Prime Minister was tasked with ‘transforming how mental health is regarded in the workplace’.

‘Thriving at Work’ includes six core and four enhanced standards with guidance for how employers and companies can better support the mental health of the employee. The document (available at www.mind.org.uk) provides a recommendation framework to plan, raise awareness, take action and review mental health in the workplace and can be adopted by any size or type of organisation.

It is critical an employer has a process to support a colleague with potential mental health issues as they may be protected by disability discrimination law. The test is whether the illness has a significant, adverse and long-term effect on an employee’s ability to carry out normal day to day activities. It is unlawful for employers to subject jobseekers or employees to disability discrimination inter alia during the recruitment process when arranging working terms and conditions of employment or reviewing performance or disciplinary matters. This includes protection against workplace bullying or harassment (intended or not) that may cause feelings of offence, humiliation or hurt for the employee or candidate.

There is also a duty to perform specific reasonable adjustments to provisions, criterions, practices or premises to prevent the employee suffering a disadvantage. A failure to meet the duty can never be justified and is always unlawful. The aim is to make sure an employee with a disability can get to work, stay in work or return to work. Expert support is available for example through Occupational Health Advisers, or this can be achieved through collaboration with the employee themselves, exploring their needs together. The requirement to make adjustments can be extended into the recruitment process so as not to indirectly discriminate disadvantaged candidates.

Regardless of whether the legal definition of disability is met, an employer should be cautious and supportive of employees on sickness absence due to stress-related illness, particularly in parallels with performance or disciplinary matters. To apply formal proceedings without comprehension of an employee’s mental health situation rarely produces a positive outcome and can potentially expose the employer to legal claims. In particular, dismissals that take place for a discriminatory reason will be actionable irrespective of length of service and provide an alternative action to unfair dismissal for employees with less than two years of employment.

If you need help with any aspect of Employment Law for your business, contact us through the website or call us on 0845 459 1724 and we’ll be happy to help.