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What are the legal responsibilities of employers regarding staff mental health?

The big questions answered.

Published 15/04/2021
More than half of business leaders are unsure of their responsibilities towards employee mental ill-health despite having a legal obligation towards them, research suggests.

A recent report by FTAdviser exposed the extent to which employers underestimate their legal obligations when supporting staff mental health and wellbeing1.

According to the survey, conducted by risk management firm Gallagher, nearly 60% of business leaders did not know where they stood in the eyes of employment law regarding this issue, despite the fact that failing to act properly could leave them open to legal disputes.

In addition, Day One Statements, which set out details such as hours of work and holiday entitlement for staff on their first day, became a legal requirement in April 2020 regardless of whether employees are in an office or not. However, according to the Association of British Insurers (ABI), many employers are still not aware of this.

Last week, with the help of trade bodies Group Risk Development (GRiD) and the Confederation of British Industry (CBI), the ABI unveiled a range of online resources to help brokers turn Day One Statements into an opportunity to boost employee mental health and workplace wellbeing support2.

And there appears to be employer appetite for it too. According to ABI research, 59% of SMEs said they would value more information to help explain their legal requirements and allow them to maximise the opportunity to promote health and wellbeing benefits to their staff3.

So exactly what is the legal responsibility of employers?

Employers are legally required to conduct a range of risk assessments to protect employees, these include risk assessments for stress, display screen equipment (DSE) and COVID-19.

However, while there is no specific risk assessment for staff wellbeing or mental health, most mental health conditions are likely to fall under the legal definition of disability under the Equality Act 2010, especially if they are deemed to have a significant impact on an individual’s daily life. Employers must therefore make reasonable adjustments to avoid disability discrimination for mental health conditions.

How is this defined?

Mental ill-health is considered a disability if it meets criteria set out in section 6 of the Equality Act 20104, judged by a tribunal based on something called the ‘deduced effect’ – a definition which takes into consideration what an employee’s condition would be without medication and the potential impact of this on their daily life.

According to employment and HR firm Thrive Law, the threshold for this definition is relatively low so employers should make adjustments based on the assumption that it is likely that a staff member will be considered legally disabled in this context5.

What adjustments can employers make?

In 2012, the Department of Health issued advice to employers on workplace adjustments for mental health conditions6.

It includes guidance on offering flexibility around working hours or patterns, as well as changes to the physical environment such as minimising noise, providing quiet spaces and increased personal places for employees.

Other adjustments can include support with workload and increased frequency of supervision as well as extra support from workplace coaches, buddies or mentors and mediation between colleagues where needed.

It is also suggested that open, honest and practical conversations with employees about their mental health condition and how it impacts their work can help tailor and inform workplace adjustments.

What guidance exists?

According to Paul Roberts, senior consultant for IHC, the guidance for stress management from the Health and Safety Executive (HSE) is “clear, unambiguous and straightforward”. The Stevenson/Farmer review of employers and mental health, meanwhile, offers guidance of 17 further points to advice for businesses of over 250 employees to review and consider in order to make their workplace a suitable environment.

“Of course, there is a lot for businesses to consider and there should be no confusion between mental health and good work. Let’s remember that good mental health is supported by good work, with the routine at work and support from colleagues helping them get through the day. The normal stretch of a day’s work is good for the mind and when it’s not, a helpline or virtual GP should be open 24/7 by phone, online or text chat.”

How should employers support workplace wellbeing remotely?

Since the onset of COVID-19, a large proportion of the UK workforce has been forced to work from home, with almost half of it working remotely during April 2020 alone, according to ONS data7.

It has therefore been challenging for many employees and employers to implement a consistent and supportive working culture remotely.

“Even before the pandemic, the UK was already facing somewhat of a health crisis with depression and obesity increasing, and people eating less healthily,” says Pippa Andrews, director of corporate, Vitality. “The same is true for workplace wellbeing, too.”

The characteristics of a healthy business are all in the culture and leadership of an organisation, and this can be reinforced through its wellbeing programme, she explains. “For businesses, the stakes are high. Not only can poor health cause problems in employees’ personal lives but it can also impact the bottom line, especially for SMEs, where there’s not much room for a drop in one person’s productivity. The pandemic has served to intensify some of the pre-existing challenges, placing a greater strain on our physical and mental health, so it’s no surprise that workplace wellness has become top priority for many organisations.”

While engaging the workforce in healthier lifestyles can be challenging, especially in the present environment, choosing a range of initiatives that cover a broad set of interests is often a good way to appeal to a diverse workforce. These can be anything from mindfulness sessions, online workout classes and book clubs to virtual wellness seminars about nutrition and other healthy lifestyle choices.

“We’ve also seen success by mobilising advocates and champions to spread awareness – people are always more likely to respond to others they feel they can relate to. Challenges are another useful incentive, helping to foster a sense of community. Finally, digital health and support services are a good tool to introduce, like online GP apps for quick access to primary care when it’s needed.”

Vitality Magazine recently explored what employees can do to increase their productivity with 10 ways to boss working from home.

At VitalityHealth, we take a truly holistic approach to supporting the mental health and wellbeing of employees with a range of offerings to corporate clients.

From prevention and early diagnosis to comprehensive cover, our approach to mental health is designed to respond to the broad and varied nature of mental health issues affecting people.

Our members have access to eight cognitive behavioural therapy (CBT) sessions per year. Meanwhile, our Vitality at Work offering is designed to help boost employee health, wellbeing and productivity.

Find out more about how VitalityHealth can support the workplace wellbeing of your clients. 



Sources:
1. https://www.ftadviser.com/your-industry/2021/04/07/employers-unsure-of-responsibilities-for-employee-mental-health/
2. https://www.abi.org.uk/products-and-issues/topics-and-issues/workplace-wellbeing/
3. https://www.covermagazine.co.uk/news/4029632/smes-focusing-health-wellbeing-benefits-staff
4. https://www.citizensadvice.org.uk/law-and-courts/discrimination/protected-characteristics/what-counts-as-disability/
5. https://www.thrivelaw.co.uk/2020/11/20/employers-obligations-towards-employees-mental-health-at-work
6. https://www.nhshealthatwork.co.uk/images/library/files/Government%20policy/Mental_Health_Adjustments_Guidance_May_2012.pdf
7. https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/coronavirusandhomeworkingintheuk/april2020

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