Out-Law / Your Daily Need-To-Know

Amy Hextell tells HRNews about the mental health issues she most frequently advises on

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    It is close to top of the HR agenda for most HR professionals – the mental wellbeing of your staff in this health crisis. It is also the topic which features more than any other in the HR press, and with good reason. We will come onto the 5 key areas we think HR needs to focus on, the areas our team is most often asked to advise on, but first the scale of the problem.

    According to the Centre for Mental Health at least half a million more people in the UK could go on to experience mental ill health as a result of COVID-19. On a personal and human level that is obviously upsetting and worrying but there is also the commercial reality - it is a huge cost to the employer. The HSE’s annual statistics show that close to 18 million days were lost due to work-related stress, anxiety or depression over the last year. Depression is a big concern - according to the latest ONS data, the number of adults in Great Britain experiencing depression has doubled during the COVID-19 pandemic. 

    The CIPD, of course, recognises the scale of the problem and the challenge facing HR, and helpfully they have produced a range of factsheets on all aspects of supporting mental health at work. They do include a section dealing with the main legal issues employers are likely to face although it very high level. It recognises, rightly, that every individual’s case will be different, it is a complex area and it is often necessary to get legal advice given the consequences of mistakes can be serious - long term sickness and, in cases of disability discrimination, uncapped compensation.

    Of course, we have been advising clients on this on a daily basis throughout the pandemic so we thought we’d share with you the 5 key areas we think HR needs to focus on in light of the advice we have given to clients over past 12 months or so. To help with that is Amy Hextell who joined me by video-link from Birmingham. 

    Amy Hextell: “The first of those, I think probably goes without saying that the longer term impact of COVID is likely to still be a challenge in respect of mental health and something that we're helping clients with, whether that be those people that have suffered with COVID and perhaps have mental health effects of long COVID or whether it be in relation to people who are feeling increasingly anxious as they're expecting to come back to work or life is returning to normal. So, the long term challenges of COVID are likely to continue to persist for the next 12 months, at least, we think. The other main area really that we're advising on in relation to mental health is we also expect, as a result of the pandemic, an increase in focus from the Health and Safety Executive. So, all employers have got a legal duty to ensure the health and safety of their employees in the workplace, whether that be at home or actually physically out at a workplace location, but that also does extend to employee mental health and wellbeing and we think that there's going to be an increased focus on ensuring that that's the case in the coming months. Thirdly, tied with that really, and in relation to another legal duty, is the duty to make reasonable adjustments for those employees who have a disability and, of course, mental health conditions may well qualify as being a disability under the Equality Act which means that employers will be under a duty to make reasonable adjustments to remove any disadvantage that the employee is suffering because of that mental health condition. So, they are really the top three areas where we're seeing employers coming to us for advice at them.”

    Joe Glavina: “So that’s our top 3 areas for HR to focus on, Amy, but I know from talking to the team that you came up with 5 areas of advice to HR which have cropped up consistently. So, tell me about the other two.”

    Amy Hextell: “The other sorts of things that we've been seeing coming up in relation to mental health, and what we think HR teams ought to be aware of, are that because of the increased prevalence and focus on mental health in the popular press over the last 12 months or so, there's a need really to be seen to be leading the field in this area and demonstrating best practice. So, really a focus on mental health and wellbeing is something that employers are going to need to look at, if they've not already looked at it, with a view to attracting and retaining talent and, in particular, attracting new neurodiverse talent. So, for example attracting the expertise and skills that particular employees may have if they have a neurodiverse condition which leads to diversity of thought and experience. Then finally the other area that we've been looking at, and perhaps quite a broad area and not just related to the COVID pandemic, but also the events that we saw this year in relation to the Black Lives Matter protests and the killing of George Floyd, is the need to manage with empathy. Whether or not somebody has a mental health condition or is legally disabled, managing with empathy is of increasing importance at the moment and having an awareness of the fact that for many employees the last 12 months or so have been very difficult, may have been particularly traumatic, and actually, whilst it's great that employers are talking more to their employees about health and wellbeing and mental health in particular, and other diversity strands, talking about those things can actually be quite triggering and quite traumatic for employees in some circumstances. So, there's a real need to check in with employees to see how they're getting on, to understand their response to those things, and ensure that you're managing with empathy at all times.”

    Joe Glavina: “Last question Amy, and this is something I know we have advised on many times. It is the situation where you have a manager doing all the right things, spotting a mental health concern, being supportive and so on. The employee opens up and asks for support, reduced hours or whatever, but in order to put that support in place the manager needs to liaise with others, HR, other managers, employees in the team and that’s the problem. In trying to help, and comply with legal duties, the manager has breached confidentiality and the employee is furious but if the manager doesn’t share what they know they can’t put the support in place. So how do you handle that?”

    Amy Hextell: “This is a really difficult area and often an area that we get asked about because it really has got a lot to consider in it because you've got the need to meet your legal duty as an employer and make adjustments and provide adequate support. You've also then got the need to make sure that you're maintaining confidentiality, and of course, for the employee who has disclosed something it is a very sensitive subject and as much as lots of talk about mental health is helping to de-stigmatise it, there is still some stigma attached to it particularly in relation to the workplace and disclosing information. So, I think that really the way to redress this is that in that discussion, where somebody is disclosing information to you about their mental health and about the support they need, being really clear with them in the first instance that it may be necessary to share some of that information with others in order to put in place the support, but agreeing boundaries with them, if you like. So, being open and honest in that conversation and agreeing what parts of the conversation, or what parts of the information, the employee would be happy for you to disclose with others. I think really importantly, and the bit that would probably get forgotten but it's really vital from an employment law and risk perspective really, is documenting that. So, when you're having that discussion with the employee, note down not just what it is that they're saying, but also what it is that they're happy for you to disclose, what it is that they're not happy to be disclosed and then you're decision as a manager, or the thoughts that are in your mind as a manager, about why, for example, you wouldn't be disclosing something, so that if ever then there were to be an issue about whether or not you should have done more, or the employee is challenging you around disclosing information, you're able to rely then on those contemporaneous documents which show the decision making and could act as a defence to potential legal claim.”

    We mentioned earlier the CIPD’s factsheets on managing mental health which offer some helpful guidance on this subject, albeit very high level. The other two useful sources for HR, we think, are the HSE and ACAS. So, ACAS has produced a helpful guide on coronavirus and mental health at work. The HSE has published guidance for employers on managing work-related stress. We have put links to all of those in the transcript of this programme.

    - Link to CIPD’s factsheets on managing mental health in the workplace
    - Link to Acas guide on coronavirus and mental health at work
    - Link to HSE guidance on managing work-related stress

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