With an increasing number of organisations implementing initiatives to support employee mental health and wellbeing, what are the legal implications to be aware of?

Recent tribunals have queried the actions of a ‘reasonable employer’, putting management and often named individuals at risk of legal action.

Mental health is the largest single cause of absence in the workplace. Each week, one in six people report experiencing a common mental health problem such as anxiety and depression.

By its very nature, mental health can be difficult to spot and address in view of the lack of physical symptoms.

Most employers are aware of the importance of addressing mental health issues in the workplace. Taking a proactive approach to mental health issues can have multiple benefits including improved productivity and employee wellbeing, reduced absence and reduced stress.

One in six people report experiencing a common mental health problem such as anxiety and depression.

However, the reality of effectively supporting employees, providing an active self-help environment within the workplace and promoting openness is less straightforward.

If, as an employer, you are planning on introducing a ‘mental health policy’ just to tick a box or as a bonus point for an award entry, think again!

By failing to consider the wider issues, including the legal implications, employers can expose themselves to legal liability as well as failing to take opportunities to address problems that their employees face.

Equality Act 2010

The Equality Act 2010 (EA) can protect people with a mental health problem from being treated unfavourably, or discriminated against, because of their condition. To get protection under the Equality Act, an employee would have to demonstrate their mental health problem is a disability.

Areas which can often give rise to potential risks and claims for disability include:

• The recruitment process, specifically failing to make adjustments in the recruitment process for a disabled applicant
• Failing to make adjustments in the context of employment to assist a disabled employee
• Taking disciplinary action against an employee because of a disability or matters arising from the disability. For example, if an employee is disciplined for an aggressive reaction when this has been caused as a result of a disability
• Terminating employment because of regular sporadic absences or long-term absence where the reason for the absence is a disability

To be covered under the legislation, the condition must be a physical or mental impairment which has a long-term adverse effect (lasting at least 12 months) and, which impacts their ability to carry out normal day-to-day activities.

For understandable reasons, some employees may not always disclose full details of their condition as part of the recruitment or employment process and in this case, there is a defence under the EA.

However, an employer can be liable if it fails to take steps to enquire fully about a medical condition. There can also be risks if an individual makes a decision without being aware of the extent of the medical condition/disability if the employee concerned has disclosed their situation to another individual within the organisation.

Rather than seeking to rely upon the ‘lack of knowledge’ defence, a better approach is to obtain medical evidence as to an employee’s condition at an early stage.

When requesting medical evidence, it is sensible to ask whether the employee is disabled for the purposes of the EA. This means that the employer has a wider and clear picture at an early stage and can comprehensively address the legal and practical steps which can be taken.

Reasonable adjustments

A key obligation on an employer under the legislation is the ‘duty to make reasonable adjustments.’ This does not apply in the same way to other protected characteristics.

Put simply, the duty to make reasonable adjustments aims to make sure that a disabled person has the same access to everything that is required to get the job done, as for a non-disabled person, as far as that is reasonable.

When the duty arises, employers are under a positive and proactive duty to take steps to remove or reduce obstacles which a disabled worker or job applicant faces.

Examples of reasonable adjustments can include:

• Allowing more frequent breaks
• Allowing workers to shift schedules to earlier or later
• Allowing workers to take additional time to attend support meetings
• Facilitating changes to working hours. For example, to work on a phased basis when first returning from absence
• Providing access to other support mechanisms and counselling, including offering financial assistance in appropriate cases

Promoting openness

A key part of an effective mental health strategy is to promote openness. Offering employees support services including confidential counselling can be extremely helpful.

There will, however, be occasions when even if an employee has requested confidentiality, the employer does need to consider its wider obligations, to ensure a safe working environment for the employee and other individuals.

In such circumstances, an employer, whilst seeking to retain confidentiality, may not be able to give a complete assurance.

A key part of an effective mental health strategy is to promote openness.

An example would be an employee working with machinery, who has openly admitted to having suicidal thoughts but who requests that matters be kept confidential.

In this situation, an employer would need to consider the wider implications and the need, in confidence, to inform other managers/employees so that appropriate steps can be taken.

Best practice

To provide effective mental health support within your workplace, here are some key things to consider:

• Implement a mental health policy which provides practical examples of how the organisation will support the welfare of its employees.
• Offer support and promote a culture of open disclosure of mental health conditions, with the reassurance to employees that this will not be a barrier to retention/career progression.
• Show a willingness to make reasonable adjustments under the EA. Emphasise this at team meetings and provide examples of steps that the employer can take to help employees who are dealing with mental health issues.

Any policy creation should always be undertaken alongside reviewing existing capability and/or health work and wellbeing policies, as well as equal opportunities and diversity policies.

Securing senior management buy-in is also fundamental in developing an approach which reflects the values of the organisation and ensure its success.

Once you have a policy in place, the key to ongoing success is raising awareness of it within the whole organisation through an ongoing internal communications and training programme.

It’s taken a long time, but the current focus on mental health provides a real opportunity for change. Employment can provide a purpose and a sense of identity.

For most people experiencing mental health issues, having the right support to stay in work can have a positive impact on their health.

By removing any stigma around mental health concerns, employers can create a positive working environment which benefits not only the individuals concerned, but with increased wellbeing and reduced absence, businesses will see greater productivity.