Addressing mental health issues in the workplace
by Richard Nicolle
Employers should take steps to look after their employees' wellbeing, not only to reduce the risk of legal claims but also to decrease sickness absences and improve morale and productivity
With one in four people experiencing some kind of mental health problem in the United Kingdom over the course of a year, it is vital for employers to remain committed to ensuring the health and wellbeing of their employees and to provide the support they need to have a safe and tolerant working environment.
As employment lawyers, we are frequently required to advise our clients on mental health issues in the workplace. Inevitably there will be occasions where employees facing disciplinary proceedings will contend that they are suffering from mental health issues and have themselves signed off by their doctor to postpone the process. This can result in a frustrating impasse from an employer's perspective.
However, there are of course many other occasions where there can be no doubt that employees have genuine and serious mental health conditions that can have a detrimental effect on their ability to perform their work, and may, in certain circumstances, risk compromising the safety of their employer's operations. Frequently there may also be links between underlying mental health conditions and addictions to alcohol and other drugs.
Stigmatisation of mental illness can have the effect of exacerbating symptoms and cause employees to be too afraid to fully disclose their illness to their employers. Employers are advised to have appropriate procedures in place whereby employees can feel free to raise concerns regarding mental health issues on a confidential basis, and receive appropriate support and assistance.
Employers should be aware that many mental health conditions will constitute disabilities under the Equality Act 2010, and this places an obligation on an employer to make reasonable adjustments to working arrangements to assist the affected employee. Failure by an employer to take appropriate action could result in substantial liability.
In particular, employers should be especially mindful of exposing a potentially vulnerable employee to excessive pressure or workload, which could then trigger a relapse in their condition. There have been cases where employers have been exposed to significant liability in these situations, where claims can be brought in the civil courts rather than through the employment tribunal system. In the case of Walker v. Northumberland County Council, for example, the claimant was awarded £175,000 in damages, where it was held that the employer's negligence in failing to reduce the stressful working conditions for the claimant led to a relapse in a stress-related condition.
The Equality Act 2010 incorporated provisions of the Disability Discrimination Act 1995. It applies to both employees and job applicants. The act prohibits an employer from treating a disabled employee less favourably for a reason relating to the disability, unless this can be justified. A typical example is the dismissal of an employee because of absence caused by a disability. The act also prohibits direct discrimination and harassment on the grounds of disability.
The act imposes a positive duty on employers to make reasonable adjustments to premises or working practices to help disabled job applicants and employees. This may mean changing a provision, criterion or practice; making adjustments to a physical feature of the business premises; or providing an auxiliary aid. Failure to comply with this duty is, in itself, a form of discrimination. Every case will depend on its facts, but possible adjustments in cases of mental illness or stress may include altering the hours of work, permitting work from home or re-allocating some duties.
It is also advisable to make necessary adjustments in relation to disciplinary proceedings and dismissals. Where an employee with a mental health condition is involved in some kind of misconduct, the courts have recommended that the employer should commission an occupational health report before instigating disciplinary proceedings.
It is uncommon for employment tribunals to make wide-ranging recommendations to an employer, however in the recent case of Crisp v. Iceland Foods Ltd, the tribunal did just that. They asked Iceland to provide equal opportunities training for sections of its HR function and senior management. In this case, the claimant suffered from panic attacks and the company was aware of her illness. The claimant was subsequently dismissed for alleged unauthorised absences.
During the appeal process two employees of the company accidentally left a recording of a conversation that they had on the claimant's home answer phone, making light of her disability. The tribunal later noted that one of the employees had had no equality training. The claimant chose to pursue claims for constructive dismissal, disability harassment and direct disability discrimination and failure to make reasonable adjustments.
The tribunal upheld all her claims and ordered the company to pay her £7,729.53, including £7,000 for injury to feelings. The tribunal also took the unusual step of recommending that the employer require all members of the HR function who provide guidance to managers on disciplinary and grievance procedures to undergo training in disability discrimination matters, specifically related to mental health.
According to the 2011 Confederation of British Industry's Workplace Health and Absence Survey, the annual cost of absence to the UK economy is £17bn, and absence due to stress-related illnesses is on the rise. Ultimately, the message to employers is that taking appropriate steps to look after their employees' wellbeing will not only reduce the risk of legal claims but also will decrease sickness absences and improve morale and productivity.
Richard Nicolle is a partner at the law firm SNR Denton UK LLP