Earlier this year, in May, the HSE has 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. What has become clear since then is the HSE is the shift in the HSE’s focus from solely the physical safety of workers to mental health and wellbeing. We’ll consider the impact of that shift.
The HSE’s latest data shows more than 17 million working days were lost in the UK last year due to stress, anxiety, or depression. As a result, last year it launched its ‘Working Minds’ campaign to help businesses recognise the signs of work-related stress and make tackling issues routine. In tandem, the HSE has called for a culture change across Britain’s workplaces to ensure psychological risks are treated.
This area has two dimensions. So, there is the employment law angle, with an HR focus, and we’ll look at that in this programme. There’s also a raft of health and safety obligations to consider which, with larger businesses, will typically sit with a separate team of health and safety professionals. We’ll look at that in a separate programme later in the week. Suffice to say, those two areas are moving closer together and those teams are working more closely with each other.
So, let’s look at the HSE’s 10-year strategy through an employment lens. Amy Hextell is one of the employment lawyers in our Birmingham team and earlier she joined me by video-link to discuss the HSE’s switch in focus. I put it to Amy that there are currently no plans at all to change the law:
Amy Hextell: “Yes, the law from an employment perspective isn't going to be changing, I don't anticipate, in response to this. I think really what this shows is that there's an opportunity for both HR and health and safety professionals within organisations to work together collaboratively but it's not going to be the case that the current framework in relation to disability discrimination, for example, so the Equality Act 2010 which, as many employers will appreciate, already provides the framework for avoiding workplace discrimination and ensuring that reasonable adjustments are made, already covers mental health and conditions related to that. So, I don't anticipate that the law is going to change but I think that, probably, what this means is that there might be a greater focus on mental health when it comes to how that law is interpreted, I suppose.”
Joe Glavina: “Turning to employment tribunals, Amy, to what extent will tribunals take into account an employer’s commitment to HSE’s strategy, and to voluntary regulations like ISO45003, when it comes to the duty to make reasonable adjustments for example?”
Amy Hextell: “Yes, the law as regards reasonable adjustments is clear. Employers are only obliged to make adjustments that are reasonable to avoid substantial disadvantage. So, as I say, the law is not changing but the tribunals obviously interpret the law and decide in a particular case what might be reasonable or not and that will shift with the times. So, with this increased focus around mental health and well-being, I think that there's going to be, perhaps, more expectation from a tribunal that employers are particularly creative around this. So, whilst in the past, you know, physical adaptations have been fairly obvious, but also things like changes to working hours, or duties, have been sort of run of the mill. I think that there probably is now a requirement that employers are thinking along the lines of how jobs can be shared amongst colleagues if you needing to make reasonable adjustments. I think that sometimes can be a fairly close-minded approach to job shares and that sort of thing that aren't explored fully or, for example, workplace location and the times that work is done. So, again, I think employers can sometimes be quite limited, I suppose, in how they approach that and, you know, they might say, well, yes, we can change hours, shift them slightly, or do a job share 50/50, but, actually, is there any reason why you can't be doing a job share between three or four colleagues? I appreciate that that's not going to work in every case but I do think that the expectation now is that employers should be thinking in that creative way about the sorts of adjustments that can be made.”
Joe Glavina: “The HSE is promoting a message that following the strategy will help employers to attract and retain talent. Thoughts on that?”
Amy Hextell: “Yes, I think that the buzz around attracting and retaining talent is certainly something that we're seeing a lot at the moment. Certainly, for an employment and reward team it's a real focus at the moment in helping our clients with this and one of the ways, I think, that employers can demonstrate that they are a ‘best in class’ employer is to be focusing on mental health and wellbeing and putting together a really holistic strategy that covers not just meeting legal requirements but that really does go above and beyond that. So, examples that we've seen recently are employers who are assisting their employees in relation to the cost of living crisis. So, not necessarily related to disability, but certainly related to mental health in many instances, and that can be not necessarily through handouts or increased pay, but restructuring of rewards strategies. So, if there’s a requirement to come into the office, as many employers are now looking at, whether that can be relaxed, or whether flexibility can be offered around timing to allow that to be off-peak times when it's easier to travel and cheaper. So, this all forms part of a much wider health and wellbeing strategy that I think employers are adopting. We've also seen a shift away from sort of bear legal compliance and reference to legal terms, I suppose, to a broader sense of wellbeing. So, lots of employers now are using wellness action recovery plans where employees are returning to work from absence, or they're using adjustment passports in the language that they're using around disability and reasonable adjustments, which is something that we would advocate for, and certainly it demonstrates this wider commitment to overall health and wellbeing strategy. Previously, I think, prior to the to the COVID pandemic, flexibility and the ability to work flexibly was a differentiator for many employers and made them an employer of choice, whereas now, that probably isn't as much of a differentiator as it used to be on the basis that it's almost the default for many employers now so there needs to be something else that's going to help you attract and retain talent and having a really creative and holistic health and wellbeing strategy is one of the things that can help an employee do that.”
The other angle to this is health and safety and, again, the HSE’s 10-year strategy document addresses that and explains the switch of away from purely physical safety towards mental health and wellbeing. Our health and safety team has already posted an article on the Out-Law website which looks at that. That’s: ‘HSE expected to turn focus to mental health and building safety’ and we’ve put a link to it in the transcript of this programme. We will be looking at that in our next programme.
- Link to Out-Law article: ‘HSE expected to turn focus to mental health and building safety’