Out-Law Analysis | 09 Oct 2020 | 8:43 am | 6 min. read
Mental health is the topic of a growing national conversation. Employers have long been aware of the negative effect of workplace stress, burnout and anxiety on the economy. The Covid-19 pandemic, combined with a looming recession, social justice issues such as racial equality and the climate crisis, has only served to bring mental health into sharper focus for employers.
These are factors outside the day to day control of most organisations. However, the 'new normal' is an opportunity for employers to press the reset button when it comes to fighting the rising tide of psychosocial risk in the workplace. Some organisations have already developed sophisticated proactive safety policies and well-being procedures to manage this risk. Others may only have simple reactive measures available to them to deal with individual employees facing a crisis, or don’t even know where to start.
Co-written by Phil Newton of Pinsent Masons.
The underlying legal duties on employers are well established. There is a general health and safety duty on employers to ensure the health, safety and welfare of its employees, so far as is reasonably practicable. Employers with five or more employees are also required to undertake an assessment of the risks employees are exposed to at work and to act on it. This includes the risk of work-related stress. Employers also owe a common law duty to their employees to take reasonable care in respect of foreseeable risks of harm.
There was little guidance to help employers address these issues until the Health and Safety Executive (HSE) published its Management Standards approach to tackling work-related stress in 2004. The Management Standards cover six core areas that, if not controlled, can contribute to poor mental health. They are:
Employers are not legally obliged to implement the Management Standards but if they do, that will be considered evidence of compliance with their legal duties.
There are a number of employment law obligations that are triggered once an employee has developed a mental health issue. A more pro-active approach to managing those issues, in line with the HSE Management Standards, can reduce legal risk.
Dr Anne Sammon
Increasingly, issues relating to factors that might contribute towards mental health conditions – for example, stress and excessive working hours – are being related to an employer's health and safety obligations
Under the Equality Act 2010, employers have an obligation to make reasonable adjustments for disabled employees. The definition of "disability" covers any impairment, physical or mental, where that impairment has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities. 'Long-term' in this context means that it has lasted, or is anticipated to last, for 12 months or more. Many mental health conditions will therefore fall within the definition of "disability", including, in some cases, anxiety and depression.
The challenge for employers is that the obligation to make reasonable adjustments is triggered where an employer has knowledge of the employee's disability and the impact that it has upon the employee. This knowledge can be imputed – so if, for example, there are facts that might suggest that the employer ought to have known about the disability, this can be sufficient for the obligation to be triggered.
By way of example in terms of mental health, if an employee who usually performs their job well suddenly has a dip in their performance, accompanied by a change in their behaviours, this may well be enough to put the employer on notice that there could be an underlying issue. There are plenty of reasons, other than disability, that might explain this, but if the employer fails to take any steps to check whether there is an underlying disability, this may result in the triggering of the obligation to make reasonable adjustments.
Knowledge of the employer does not necessarily mean that the HR team have to be aware of the issue – often, it will be sufficient for a line manager to have knowledge, whether because they have been told by the employee about the disability, or because they ought to know about the disability because of, for example, a change in the employee's behaviour and/or performance. This means it is crucial that managers are trained to identify employee behaviours that might require further investigation, which might include a referral to the employer's occupational health provider.
Increasingly, though, issues relating to factors that might contribute towards mental health conditions – for example, stress and excessive working hours – are being related to an employer's health and safety obligations, with employees raising grievances as a result of an alleged failure to provide a safe working environment. It is important, from the perspective of preserving the trust and confidence between employer and employee, that such grievances are properly investigated. If the employer fails to properly investigate the issues raised, there is a real risk of a constructive unfair dismissal claim.
Some organisations have successfully implemented the Management Standards and delivered positive change in how mental health issues are perceived and addressed in the workplace. But the picture overall is mixed.
Partner, Head of Health and Safety
Regulators may well take greater interest in an employer's policies regarding homeworking generally and occupational stress in particular
The reasons for the slow progress of some are varied but we can point to organisational inertia and the resultant lack of resourcing as well as a lack of enforcement action by regulators. The HSE has served enforcement notices but, crucially, work-related stress is not a reportable incident even where there is a medical diagnosis linking stress to the workplace. In addition, HSE's enforcement action has been constrained by budget cuts. The increase in employees' awareness of health and safety issues, partly as a result of Covid-19, may require employers to become more pro-active in this area, particularly if they start to see increasing numbers of grievances raised in respect of such issues.
From a regulatory perspective, Covid-19 is forcing organisations to reconsider their approach. The HSE's own guidance requires employers to consider psychosocial risk as part of the risk assessment which is undertaken to ensure a 'Covid-secure' workplace. Organisations with over 50 employees are also expected to publish the findings of this assessment on their website.
As more employees work from home for prolonged periods mental health issues amongst that cohort may well increase. Regulators may well take greater interest in an employer's policies regarding homeworking generally and occupational stress in particular. This could result in an upturn in enforcement action. A proactive approach based on risk assessments and the HSE's Management Standards is what the regulator will expect to see.
Fresh guidelines are being developed to help businesses around the world, and multinational organisations in particular, to effectively manage mental health issues in the workplace. This is to be welcomed.
Currently, the International Organization for Standardization (ISO) is overseeing the development of ISO 45003 – a new international standard for psychological health and safety in the workplace. It is due to be published in summer 2021.
According to the ISO, the new standard will provide guidance on the requirements of an existing standard, ISO 45001, which it claims "sets a single benchmark for the management of occupational health and safety", in the particular context of "managing psychological health and safety risks within an [occupational health and safety] management system".
It said the new standard "will address the many areas that can impact a worker’s psychological health, including ineffective communication, excessive pressure, poor leadership and organisational culture".
What the new ISO standard might add to the HSE's Management Standards in the UK is as yet unclear. However, the development work on the new standard reflects the fact that it seems likely the issue of mental health will remain on the agenda for the foreseeable future. What employers can focus on now is building the competence of their safety and HR professionals in this area and reviewing their current safety systems to 'take stock' and audit their current performance.
In our latest Brain Food for General Counsel podcast, Alastair Campbell discusses his depression and how it interacted with his high profile work, and Barclays managing director Philip Aiken talks about a programme he put in place to help organisations take more account of employees' mental health.
09 Oct 2020
28 Apr 2020