Yasmin Allan considers the legal and practical issues linked to the employee wellbeing agenda.
Employee mental wellbeing is a rising issue that many organisations are striving to address to ensure that their employees remain happy and motivated at work. After all, a happy workforce is a productive workforce. In this article, we will take you through some of the key legal obligations, together with ways in which organisations can seek to promote mental health and wellbeing in the workplace.
Why you’ve got to get it right
The Health and Safety Executive website reports that one in four people will suffer from some form of mental illness in their lives. Although business expense should not be the primary driver, the cost to employers of mental health problems in the UK workforce is also estimated at approximately £35 billion, which is a substantial increase from £26 billion a decade ago.
We know by now that investing in health and wellbeing can improve productivity. NHS Trusts, for example, that score highly on the health and wellbeing index (measured annually through the NHS Staff Survey) have better performance across a range of measures, including financial, spend on agency staff, patient satisfaction and fewer infections. So what, as employers, can we be doing to ensure a mentally healthy and productive workforce?
What can you do?
It almost goes without saying that employers should be proactive and preventative in this area, rather than reacting to problems when they arise. Some practical examples of steps employers can take to improve mental health in the workplace include:
(i) Create a mental health policy which sets out the organisation’s values and approach towards supporting employees.
(ii) Implement a dedicated employee assistance or wellness programme and confidential counselling.
(iii) Ensure that senior managers champion awareness of mental health and have regular one to one meetings with employees to identify potential issues and offer support. ACAS have published useful guidance on mental health in the workplace, which includes practical information for managers on managing staff experiencing mental ill health.
(iv) Adopt initiatives designed to promote employee wellbeing such as incentivising staff to eat lunch away from their desk, take “walking” meetings, or offering onsite yoga classes and mindfulness sessions.
(v) Strive to be an open and approachable employer by fostering a culture of support so employees feel confident about seeking help without a stigma being attached.
(vi) Manage absent employees and those returning from long term sick leave carefully with input from occupational health.
The legal framework
There are a plethora of legal obligations in relation to the health and safety of the workforce and the practical steps listed above should go some way in assisting employers to meet these with regards to mental wellbeing.
From a personal injury perspective, the key focus is on whether or not the harm suffered was reasonably foreseeable and whether or not the employer took reasonable steps to avoid it. A counselling service and involving occupational health can help in that regard. Employers also need to be mindful of claims under the Protection from Harassment Act 1997 in relation to employees suffering from stress or depression caused by a course of conduct pursued by a fellow worker. This could give rise to vicarious liability on the part of the employer. Actions can be brought for up to six years and there is no employer’s defence that it took reasonable steps.
The legal definition of disability under the Equality Act 2010 includes references to “mental impairments”. Someone with a mental impairment that is long-term and has a substantial adverse effect on normal day-to-day activities will be protected. Employers are under an obligation not to discriminate and to provide reasonable adjustments in relation to any employees who meet the definition. Failure to do so could expose employers to the risk of claims for disability discrimination (where awards of compensation are potentially uncapped), as well as generate negative publicity around how employees who suffer with mental illness are managed. Training senior managers around awareness of mental health issues and regular one to one contact with staff should assist in identifying issues so appropriate support and adjustments can be addressed.
Employers also need to proceed with caution when managing employees going on sickness absence leave due to stress, particularly where there are disciplinary or absence management proceedings. Although employers must be able to apply their formal procedures, they should be mindful of an individual’s particular personal and medical situation in doing so through discussion and seeking input from occupational health. Employees could also consider resigning and claiming constructive unfair dismissal if they are insufficiently supported and can show a breach of the implied term of mutual trust and confidence.
Conclusions and next steps
It is clear that the employee wellbeing agenda is here to stay and there are sound reasons for giving thought to your employee wellbeing programme – both from the point of view of limiting your legal liability and also because of the general benefits connected with creating a supportive, positive working environment.