What should employers be doing to offer support in the face of UK “mental health crisis”?

Research from mental health charity, Mind, reveals that work pressure is the number one cause of stress in our lives. Add lockdowns, remote working, rising unemployment and continued uncertainty to the mix and it is not surprising that we are on the brink of a mental health crisis. The HSE Summary Statistics show a sharp increase in cases of work-related stress, depression or anxiety as compared to pre-pandemic levels. Although remote working has provided more flexibility, it has also exacerbated loneliness and isolation and placed individuals who are vulnerable to stress and overwork at particular risk. Many have also been faced with additional caring and childcare responsibilities, leading to irregular working patterns and an inability to “disconnect” from work.

The HSE report showed that women had higher rates of work-related stress, depression or anxiety than men, with women between the age of 25 and 34 being most likely to report this as a reason for absence. The most common reasons for stress at work have been cited by the CIPD Health and Wellbeing At Work 2021 report as: workload and volume of work (59%); management style (32%); and new work-related demands due to homeworking as a result of COVID-19 (31%). For some people the effects of stress, anxiety and depression may be long-lasting.

Although employee wellbeing continues to rise up the corporate agenda, a recent survey commissioned by Lime Insurance suggested that 51% of respondents felt under pressure to hide their mental health struggles from colleagues and to “put on a brave face”. Furthermore, a poll carried out by Mental Health First Aid (MHFA) England revealed that 29% of employees have never spoken to their line manager about their mental health, with other reports suggesting that individuals are afraid to admit they are struggling in case they get treated differently. The CIPD report also indicated that those interviewed did not trust in the skill and confidence of managers to assist them.

Many employers are taking steps to address these issues and the CIPD report indicated that 84% of organisations have increased their focus on mental health in response to the pandemic. There has also been an increase in the provision of mental health support in benefits packages as part of a broader move to prioritise mental wellbeing and talent retention. However, this alone is unlikely to provide the “full package” of mental health support that the HSE report calls for and employers would be well-advised to engage with mental health issues on a more holistic level. Best practice now includes a range of different support channels, including the provision of training to staff, and crucially managers, within organisations to better identify and de-stigmatise mental health issues.

What is an employer’s legal responsibility?

Supporting employees’ health, safety and wellbeing, including mental health, is a key part of an employer’s implied duty to take reasonable care for the safety of employees. Employers also have a statutory duty under the Health and Safety at Work Act 1974 to ensure that employees are not exposed to unnecessary risk, both physically and mentally, when at work. The standard of care is determined by the requirements of reasonableness and employers must therefore take reasonable steps to keep employees safe from harm. Employers should note that such duties apply equally to employees working from home as to those in the workplace. Failure to satisfy these duties could lead to possible claims for damages, such as breach of contract or personal injury claims and it is important for employers to note that simply offering wellbeing perks will not be sufficient to discharge the duty in circumstances where unreasonable demands are placed on employees.

Employers also have certain obligations under the Equality Act 2010 towards employees that fall into the definition “disabled” by virtue of their mental health condition. Whether someone has a disability or not in such cases will depend on the circumstances but where the mental health problem has a “substantial and long-term adverse impact on an individual’s ability to do normal daily activities” then it will qualify as a disability. If an employee is disabled, then the employer will have a legal duty to make reasonable adjustments to eliminate any disadvantage suffered by the employee as a result of any provision, criterion or practice operated by the employer. There are also statutory prohibitions on discrimination because of a disability, and on less favourable treatment because of something arising in consequence of a disability where that treatment cannot be objectively justified. The latter prohibition in particular means that employers who take adverse action against employees for matters such as high levels of sickness absence, or performance concerns, must be alert to the risk that such matters are related to a disability. Harassment (defined as conduct which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment) is also prohibited; this may occur where outdated attitudes to mental illness are expressed in the workplace. Employers that fail to engage in these issues are likely to become legally exposed to the risk of disability discrimination claims.

What should employers be doing?

The effects of mental health problems on an individual’s ability to work can be significant, with many being forced to take short- or long-term sickness absence because they are unable to cope. Indeed, reports suggest that in 2021, mental health issues were the main reason for all sickness absences, at a cost of around £43 billion to UK employers. There are additional indirect costs that employers face, including hiring replacement staff, loss of business continuity and ultimately, loss of talent, as some may leave their jobs altogether.

Studies have shown that where mental health training is incorporated into the culture of an organisation, employees are more resilient and productive, morale is higher, and employees are less likely to take sickness absence. Employers should be encouraged to take a holistic approach to health and wellbeing and senior leaders with influence should take these issues seriously so that a full package of mental health support can be offered.

Employer best practice includes the following:

• Create an open dialogue – providing a safe platform for timely and regular communication is crucial to breaking the stigma and encouraging employees to feel more comfortable about speaking up. The more communication there is, the easier it will be to provide more tailored support to address individuals’ needs. Disclosures should be treated sensitively and reasonable adjustments should be made where possible.
• Increase awareness – employers are increasingly providing employee assistance programmes and staff training and this should be encouraged to build resilience. There has also been continued growth in the use of mental health champions and first aiders, although there remains a lack of training for line managers. Managers are often best placed to spot the early warning signs of mental ill health and should receive training in how to have sensitive discussions with their staff. Confidentiality is often a key concern for individuals and managers should agree parameters with individuals at the outset.
• Tackle the causes of workplace stress, anxiety and depression – surveys point to an overall feeling that mental health support in the workplace was ultimately worthless if it did not address the root causes of the problem i.e. workload, management style and new ways of working. Employees may be able to adopt a better work-life balance if they receive help with workload or are encouraged to set boundaries. More information on the “right to disconnect” can be found in our previous article here; the Scottish government has recently expressed support for this concept so there may be further developments in this area.
• Implement systems and controls to monitor mental health – mental health problems are often invisible and at the most basic level, employers should have policies and risk assessments in place to protect employees’ mental health. It is also now advisable to have a proactive monitoring framework in operation to pick up on the signs of mental ill-health at an early stage, for example by monitoring behaviour, workload and absences.
• Supportive environment – many employers now offer meditation sessions, therapy or counselling (often through private medical insurance), discounts on fitness providers and confidential helplines. Support should be clearly signposted so that employees are made aware of what is available. Employees appear to be making use of such schemes, with a recent poll by Gartner showing that 49% of employees interviewed had taken part in workplace wellbeing programmes.
• Flexibility in approach to COVID-19 restrictions – with new COVID-19 variants continuing to emerge, is impossible to predict whether we will face further restrictions in the coming months. Whilst initially the “stay at home” message was a strict legal requirement, more recent restrictions on working from home have been guidance only and not a statutory requirement. Some employers are therefore taking a flexible approach to government advice, allowing employees to continue to attend the workplace if it is beneficial for their mental health. This approach should be taken more widely by employers (taking into account government guidance at the time and necessary risk assessments) so that employees can attend the workplace if desired.

Conclusion

As we slowly emerge from the pandemic, the toll it has taken on employee mental health is starting to be felt. We will no doubt start to see more related cases coming through the Employment Tribunal system, particularly for disability discrimination under the Equality Act 2010, for which compensation awards tend to be the among the highest. The legal and business risks associated with a failure to treat employees’ mental wellbeing as seriously as their physical health and safety mean that this is an area employers cannot afford to ignore.