As we reported on Tuesday, 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. As the document makes clear, there is to be a shift in the HSE’s focus from solely the physical safety of workers to mental health and wellbeing.
This area has two dimensions. So, there is the employment law angle, with an HR focus, and we looked at that in Tuesday’s programme with Amy Hextell explaining the impact that will have on the employer’s duties, in particular disability discrimination and the duty to make reasonable adjustments under the Equality Act. There has also the health and safety angle – the raft of health and safety obligations which, with larger businesses, often sits with a separate team of health and safety professionals. We’ll look at that in this programme.
The background to this. A reminder - employers have a legal duty to assess and mitigate workplace risk and that duty extends beyond potential hazards and physical safety to also include risks to mental wellbeing, or as it’s often described, ‘psychological risk’. Back in June we saw publication of the first global standard on managing psychological health in the workplace. ISO 45003 provides guidance on the management of psychosocial risk, as part of an occupational health and safety management system. So, employers can assess where they stand in terms of the risks and mitigations they have in place, benchmarking against the standard.
Since then the mental health of the workforce has been moving up the boardroom agenda - firms have come to recognise that people are often an organisation’s greatest asset. It’s noticeable that this issue is no longer seen as exclusively the concern of the health and safety team in the business. Rather, it ties in closely to the wider raft of employment law obligations and so is increasingly an area that HR is becoming much more involved in, working more closely with those health and safety professionals.
So, let’s hear more about all of that. Phil Newton is one of the lawyers in our health and safety team and earlier he joined me by video from London. I started by asking whether there has been a change in approach towards mental health from his clients:
Phil Newton: “Yes, it's a good question, Joe. I think obviously every organisation is different so I have to speak in general terms to a certain extent but, generally, what I'm hearing is that there's been a bit of a mindset shift here. So, I think firms are moving away from thinking of poor mental health as a legal risk, and a kind of compliance issue, to more of a kind of ethical consideration. So, I think the fundamental question that a lot of boards are dealing with, and managers, is are we doing the right thing by our people? That’s a really big question for organisations to grapple with, and how do they go about doing that? So, yes, that's the kind of shift that I'm seeing at the moment.”
Joe Glavina: “Your team’s Out-Law article talks about why the HSE might be taking this new approach, this realignment if you like, and ‘establishing a causal link between mental health issues and workplaces’. Tell me about that.”
Phil Newton: “Yes, well those are kind of traditional barriers to enforcement. So, this is not a space where the HSE have been particularly active in the past and I think one of the reasons why organisations are able to look at this as more of an ethical consideration is because they haven't had the regulator chasing them previously around what they're doing in relation to managing mental health and the causes of stress, anxiety, and depression in the workplace. So, in terms of the reporting requirements, there are very restrictive and limited reporting requirements when it comes to reporting workplace incidents, etcetera. So, for example, we know in the construction industry there's a high prevalence of male suicide. Those issues are being investigated by coroners, and the causes of workplace stress and the extent to which those play a part in the resulting suicide, but they're not being investigated by regulators, particularly the HSE as the safety regulator in the workplace, because it's just not a reporting requirement. So suicide, as an example, is very much considered a societal issue, as opposed to a workplace issue, and it's not one or the other but, at the moment, there's no nuance there in the regulatory reporting requirements. The other issue that you raised was around sort of a causal link and that’s an evidential concern for any prosecutor. So, can they establish that the cause of a workplace stress, depression, or anxiety played a part in a safety incident, and that’s very difficult to establish. It’s often easier for the HSE to look at more traditional safety risks, and any failures to manage those traditional safety risks, whether it's work at height if it’s a work at heights incident, for example, than to go deeper and look at any reason why somebody wasn't concentrating at the time. So, there's quite complex evidential concerns there as well. So those are the barriers to enforcement that I think you were alluding to there, Joe.”
Joe Glavina: “You told me as we came on air that, anecdotally, you’d heard from an HSE inspector that the HSE wants to be more proactive, working with employers to prevent safety risks, not just reacting after the incident. Are clients latching on to that?”
Phil Newton: “Yes, absolutely. I think what we're going to see in this space is the HSE being more active on all fronts and that sort of anecdotal piece that you referenced, there was an HSE inspector saying that, you know, as a result of this 10-year strategy which the HSE have got in place now, which focuses more on mental health, what does that actually mean? I think the messaging that they're getting is that they need to engage more with employers on this issue in terms of more proactive inspections and that’s actually the HSE going back to its original function of not just being a prosecutor, but actually working with organisations and developing that relationship. So, we may see that. We may also see more campaigns. The Working Minds campaign has been very successful and so extensions of that type of activity but also traditional legal action, if I can put it in those general terms. So, we know that the HSE are recruiting more legal professionals into their legal services division and that's with the aim of taking more enforcement action, not just in mental health but across the board. So, the HSE have released their 10-year strategy and we expect to hear more in the coming months about how they expect to deliver on that priority to tackle mental health in the workplace. So, I think all options are available at the moment when it comes to the HSE in terms of how they go about tackling this issue.”
Joe Glavina: “Finally, Phil, we are being told that, going forward, it’s going to be important for the health and safety and HR teams to work more closely together. I guess you go along with that too?”
Phil Newton: “Absolutely, I think there's a danger that sometimes these functions within business operate in kind of silos and mental health is one of those issues that that really cuts across, particularly in relation to the kind of data collection and analytical side of that data. In order to understand the risk, and it’s the safety professionals who are the experts in assessing risk, they have to work with HR professionals to understand the data that they have collected. So, whether that's employee surveys or, you know, exit interviews, etcetera, that type of typical HR data, HR professionals need to work with the safety professionals to understand it and then risk assess around that. So, that's just a classic example of where age HR and safety professionals need to work need to work together.”
The health and safety team’s Out-Law article on this looks in more detail at the HSE’s 10-year strategy. 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’ve also put a link to Tuesday’s programme featuring Amy Hextell talking about the impact of all of this on employment rights.