Out-Law News

EAPs ‘overwhelmed’ by demand for mental health support

Phil Newton tells HRNews about Employee Assistance Programmes and the employer’s duty of care to staff

We're sorry, this video is not available in your location.

  • Transcript

    The demand for mental health support is growing fast but employee assistance programmes are being overwhelmed with many employees forced to look to the NHS for help. That is the headline in a piece for Personnel Today which appeared on World Mental Health Day last month. Given employers have a duty of care to support employees’ mental health and wellbeing, what are the implications of the strain on EAPs? We’ll consider that.

    The gist of the article is there is a mental health crisis which is affecting the level of support offered by EAPs and that is impacting staff and, in turn, HR. They say employees are having little option but to fall back on NHS for support, which itself also overstretched and increasingly difficult to access. 

    People Management also reports on this with their headline ‘EAPs alone cannot solve employee mental health problems, association says.’ The association in question is the Employee Assistance Professionals Association, which reminds employers that EAPs were ‘never intended to be the whole solution’. That’s in response to a claim from one EAP provider that HR professionals are being called upon to support distraught employees who have been forced to seek alternatives to ‘overstretched’ EAP providers and that many workers are being ‘palmed off’ as a result.

    So, let’s get a view on this from a lawyer specialising in this field. Earlier Phil Newton joined me by video-link from London to discuss the issue. I started by asking Phil to help explain where EAPs fit with the employer’s duty of care:

    Phil Newton: “Sure, well, obviously I'm a health and safety lawyer so, from my point of view, they're an HR tool and they're one of the tools available to organisations but from a health and safety point of view the main tool at the disposal of OSH professionals is risk assessment. So, when it comes to understanding the balance of what organisations should use, from my perspective, it should always start with a risk assessment, whether that’s of individuals, if they present the organisation with specific needs or concerns, and also at an organisational level as well. So, yes, EAPs, they've been around for a long time and employers are well used to sort of using those as a kind of first port of call for employees who are in distress, or who are raising concerns. But EAPs are not a panacea and I use that phrase specifically because this was something that was raised by the Court of Appeal back in 2007 when they considered the adequacy of EAPs and the Court of Appeal specifically said that they're not a panacea, they're not the answer. Mental health is a pretty complex risk and it's one where organisations are developing their understanding all the time about the workforce that is under their control. So, yes, EAP is just one of the tools that can be used.”

    Joe Glavina: “Does having an EAP help an employer defend a stress-related claim, Phil?”

    Phil Newton: “That's an interesting question because, from a health and safety point of view, the way the courts approach this is to interpret statutory duties. So, employers have a general duty to ensure, so far as reasonably practicable, the health, safety and welfare of their employees. So, just a couple of points to note as that general duty. It’s a positive duty, employers have to take action to prevent workplace stress. How do the courts interpret whether employees are taking all reasonably practicable steps to do that? Well, they look to what's available in terms of guidance to employers, and there is a plethora of guidance. So, over the recent years we've seen, well the HSE management standards have been around since 2004, and the HSE also published toolkits, they've got the ‘Working Minds’ campaign in recent years that’s been very successful to raise awareness, but employers also now have ISO 45003, the international standard, that helps employers to assess psychosocial risk in their organisation and very recently, the WHO have also released guidance on this topic. So, employers are not going to be able to stand up in a court and say, where do we start with this in terms of understanding this risk? So, courts will look to that and that means that employers have to comply with their duties by taking into account that guidance and understanding the risk in their workplace.”

    Joe Glavina: “We’ve seen headlines recently suggesting EAPs are being ‘overwhelmed’ and staff are turning to the NHS. What do you make of that?” 

    Phil Newton: “Yes, that's an interesting development and I think that's a classic sign of ‘overwhelm’ within organisations. The NHS are obviously a medical service and it's right and proper that they deal with clinical need where employees are presenting with mental health conditions. I think the issue for employers, though, is, why are they coming to us in the first place? Employee Assistance Programmes are there to help employers react when faced with these kinds of situations but the focus should really be on prevention and that's why we start with the individual and organisational risk assessment so that employers can be ahead of the game in identifying possible causes of workplace stress so these situations don't arise. Don't get me wrong, there will always be a need for Employee Assistance Programmes for people who are presenting with specific needs because this risk is not just born in the workplace. It's born in society or both. So, this is a very complex need and in order to understand it, and the role that employers have of in potentially causing stress, that's where the risk assessment comes in.”

    On the subject of mental health not long ago the HSE published its strategy for managing health and safety risks over the next 10 years, designed to reflect the changing nature of the world of work. Back in September Phil talked to this programme about that and the change we have seen in firms’ attitudes toward mental health risks. That programme is called ‘Mindset change at board level over mental health safety’ and we have put a link to it in the transcript of this programme.

    - Link to HRNews programme: ‘Mindset change at board level over mental health safety’


We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.