All employers, irrespective of their size, have a duty to ensure the mental health, safety and welfare of staff. There are further duties to carry out risk assessments, apply principles of prevention and provide information to employees.
These health and safety duties clearly apply to issues around employees’ mental health as well as physical health. For example, employers are responsible for effectively managing and controlling the risks from work related stress. The Health and Safety Executive (HSE) has devised management standards to assist and encourage employers to comply with their legal obligations in managing work-related stress.
The management standards set out required standards to be achieved by employers in six areas which can be the source of stress at work:
· The demands placed on employees
· The level of control employees have over their work
· The support employees receive from managers and colleagues
· The nature of relationships at work including promoting positive working to avoid conflict and dealing with unacceptable behaviour
· Ensuring people understand their role within the organisation
· How organisational change is managed and communicated within the organisation
A failure to meet the above health and safety duties can result in criminal enforcement action being taken by the HSE. It can also result in employers facing claims from employees for personal injury, constructive dismissal, or disability discrimination.
By contrast, employers who take steps to manage work related stress and promote their employees mental welfare are likely to benefit from increased employee productivity, morale, performance and engagement; reduced absences and associated costs; and increased profitability.
Employees suffering from mental health problems may be protected as disabled persons under the Equality Act 2010.
This means employers must not discriminate against them because of their disability – for example, stigmatising someone returning to work after a breakdown as “damaged goods” – or for reasons arising from their disability – for example, taking disciplinary action against an employee with depression whose time-keeping and performance have deteriorated due to a worsening of their condition, without taking reasonable steps to explore whether the difficulties have arisen from the disability and that any action taken is justified.
Employers are also under a duty to make “reasonable adjustments” so that disabled employees, including those with mental health problems, are not put at a disadvantage in the workplace. Where an employer is, or ought to be, aware that an employee is disabled they must make reasonable adjustments in an attempt to reduce or remove any disadvantage the employee suffers in the workplace. The question of what steps are reasonable will vary according to the size and resources of the employer.
Discrimination law provides protection not only when an employer has actual knowledge that an employee is disabled, but also where the employer ought reasonably to have known the employee was disabled. Employers are therefore expected to take reasonable steps to find out if a worker has a disability, including mental health problems.
In order to reduce the risk of work-related mental health problems arising, and to support employees who suffer from mental health problems, employers should encourage an open culture where mental health is discussed.
This includes ensuring there are channels in place for employees to raise concerns and that positive action is taken when employees seek help. Line managers should be trained so they are aware of the issues and able to listen and communicate effectively. Simple and practical steps such as these can help create a happier, healthier and more productive workplace.
Chris Weaver is an employment associate at Payne Hicks Beach
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