Directors have a key role to play in ensuring that their organisations do not discriminate against workers who are suffering from mental ill health.
This briefing will give you all the essential background information and advice on implementing the necessary arrangements to avoid prosecution.
Introduction
Mental health is important in the workplace. Many people in employment have a recognised mental illness. Still more suffer from mental ill health or stress-related issues. The majority perform normally at work and are valuable employees despite occasional periods of sickness.
Employers have a key responsibility in ensuring that workers with poor mental health are not discriminated against. Employers should ensure that all staff have supportive and rewarding working conditions wherein they can thrive and achieve their potential.
The employment of people with mental ill health is also an important social responsibility. Work is a key factor in supporting people who are living with mental ill health and in keeping them well. It gives many people self-esteem, companionship and status, as well as a chance to use their skills and to feel fulfilled.
Mental ill health at work is often linked to stress. While stress is not a mental illness, many of the symptoms of stress and mild mental health conditions are similar. In addition, stress can exacerbate existing mental ill health and affect anyone’s ability to cope.
Legal requirements
Mental ill health may constitute a disability under the Equality Act 2010.
The Act places responsibilities on employers not to discriminate against workers on the grounds of disability. For example, if a person has a mental health condition that meets the Act’s definition of disability, and is harassed or discriminated against because of this, that would be unlawful.
In addition, the Act also requires employers to make “reasonable adjustments” to help disabled people to work by removing the barriers that stand in their way.
Costs and benefits
Providing flexible and supportive employment policies that reduce the incidence of mental health related sickness absence is a major cost saving.
In 2018/19, it was reported by the HSE that 602,000 workers suffered from work-related stress, anxiety or depression. 17.5 million working days were lost through mental ill health at an estimated cost of £2.4 billion.
In addition, acknowledging staff struggling with mental health in staff welfare policies makes good business sense. It has been shown that workers with mental health difficulties usually perform well and make important contributions to the business. Losing people from the workforce due to mental ill health would be a loss of skills and valuable experience.
For instance, in its report, Added Value: Mental Health as a Workplace Asset, the Mental Health Foundation quotes research which suggests that people living with mental health problems contributed an estimated £226 billion gross value to UK GDP, nine times the estimated cost to economic output arising from mental health problems at work. The report concludes that improving and protecting mental health secures that value and helps reduce costs.
Strategic leadership
Directors should ensure that appropriate policies and strategies are in place that support staff with mental health issues and prevent discrimination. These might include:
a mental health at work policy
equality and diversity policies, established under the Equality Act 2010
stress management policies and strategies
policies designed to combat discrimination and harassment
occupational health policies and operational frameworks.
HR departments should be asked to collect data relating to sickness absence for mental health reasons and include an analysis of the data in regular reporting mechanisms, in strategic dashboards and in high-level performance monitoring meetings with senior management.
Occupational health provision should be established that includes support for workers with mental ill health.
Employers should always have a stress management policy in place and take action to control stress in the workplace. Failure to deal effectively with stress at work can leave directors vulnerable to claims from employees suffering from the results of stress at work. This can include factors that are known to exacerbate stress, such as poor work-life balance or a culture of long working hours or being constantly “on call”.
Positive action
There are a number of positive actions that employers can take to promote positive mental health in their workplace and support workers with mental ill health.
Acas suggests a three-step approach, as follows.
Identify any work-related causes and make “reasonable adjustments” to support people.
Train managers to spot the signs of employees who may be having psychological or emotional difficulties.
Promote awareness of mental health issues and create a culture where employees feel they can talk about their concerns.
Directors must ensure that the Equality Act 2010 is fully implemented throughout the organisation.
The Act requires employers to make “reasonable adjustments” to the workplace and to work tasks to accommodate the needs of a disabled employee, ie those who have a long-lasting physical or mental impairment that impacts substantially on their ability to carry out day-to-day activities. This would include people with mental ill health.
Directors should ensure that managers are trained in how to provide appropriate support to staff with mental health issues and how to create a healthy working environment. Training in mental health issues will help to fight the misconceptions some people have about mental illness.
Promoting awareness should be aimed at encouraging the workforce to be more tolerant of mental health and more understanding of the stresses and strains staff are subjected to and how these can be lessened.
Directors can demonstrate their commitment to supporting mental health in the workplace by signing up to schemes such as the following.
Charter for Employers who are Positive About Mental Health established under the Mindful Employer campaign.
Time to Change campaign.
Social inclusion
Employing people who struggle with their mental health and protecting them from discrimination will not only ensure legal compliance but is also a socially inclusive approach.
In 2009 the Government published the Perkins review, Realising Ambitions: Better Employment Support for People with a Mental Health Condition. The report concluded that people with mental health conditions remain among the most excluded within society, especially with regard to the workplace. Subsequent government strategy is for as many people as possible to gain rewarding employment, including those with mental health issues.
Legal cases
A number of legal cases have been brought by people who have felt they were treated unfairly by employers because of their mental health problems. These are civil cases and there are no reported criminal prosecutions in this area.
In Linsley v Revenue and Customs Commissioners (2018), Ms L, who suffers from ulcerative colitis, was not provided with a dedicated parking space as recommended by occupational health. The stress of this aggravated her symptoms and she went off sick. Her complaint of disability discrimination was upheld on appeal, in part because the employment tribunal had failed to consider the stress caused to Ms L in having to search for a parking space.
In Harris v John, Ms H was disabled by reason of breast cancer and depression. Her employer went ahead with a grievance hearing with undue haste, followed by disciplinary proceedings at short notice. The employment tribunal decided that this put Ms H at a substantial disadvantage and awarded her £15,000 for injury to feelings.
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