Employee welfare policies should cover mental health

08 February 2013
Employee welfare policies should cover mental health

Failure to address issues such as depression or stress can expose employers to charges of negligence or discrimination, warns legal expert Joanna Marshall

The problem
Research by the mental health charity Mind suggests that one in six workers suffers depression, anxiety or stress at some time. Mental health issues in the workplace are estimated to cost the UK economy nearly £26b a year, including lost working days and reduced productivity. It is clear, therefore, that better management of mental health-related issues in the workplace is required.

The law Employees suffering from long-term mental health conditions such as depression, anxiety and stress may, if their condition has a substantial adverse effect on their ability to carry out day-to-day activities, be "disabled" within the meaning of the Equality Act 2010.

Under the act, it is discriminatory to treat a disabled employee less favourably for a reason relating to their disability. In addition, employers are under a duty to implement reasonable adjustments to the workplace and/or to the role being undertaken if a disability places an employee at a substantial disadvantage in comparison to their non-disabled colleagues.

Employers also have a common law duty to take reasonable care to ensure the health and safety of their employees and, if they fail to do so, they risk negligence claims.

Expert advice Good management of mental health issues will not only reduce the likelihood of legal claims brought against a business but it will also reduce absenteeism and increase productivity.

Employers should consider adopting a stress policy and implementing the Health & Safety Executive management standards (see www.hse.gov.uk/stress/standards).

In addition, where mental health issues become apparent, employers should provide appropriate support and explore what can be done to help the employee return to health, such as redistribution of workloads, unpaid leave or flexible working. Managers should not be afraid to ask employees what support they might need, as communication is vital. However, clearly, sensitivity must be exercised.

If an employee is returning from a long period of sickness absence, or if it is known or suspected that an employee is disabled, an employer should be mindful of its duty to make reasonable adjustments and discuss what might be appropriate with the employee.

Check list â- Consider adopting a stress policy and implementing the Health & Safety Executive management standards.
â- Provide staff, particularly those in management positions, with awareness training to help them spot signs of mental health issues and to promote wider understanding within the workforce.
â- Once on notice of a potential mental health issue:
â– Provide information about the forms of support available to employees at work, including counselling, mentoring or an occupational health service. In particular, employee assistance programmes should be highlighted to employees to help resolve personal and work-related problems.
â– Explore what might help the employee's return to health, eg, offering flexible working, unpaid leave or redistributing work.
â- If it is known or suspected that an employee is disabled, a meeting should be arranged with them to consider what reasonable adjustments can be made.
â- Ensure that where an employee is returning from a long period of sickness absence as a result of mental health issues there is open dialogue about what adjustments might be required and how they can best be supported.

Beware! According to UK insurance firm Aviva's recent Health of the Workplace 2012 report, while employees generally feel there is less stigma attached to mental health issues in the workplace, more than a third (35%) still feel that the subject remains "taboo" and is seldom talked about. If employers fail to address mental health issues, they risk reduced productivity and increased absenteeism as well as exposing themselves to claims for disability discrimination and negligence.

Contact Joanna Marshall is an associate at Charles Russell

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