The Legal Framework

Employers' obligations regarding mental health come from several key pieces of legislation:

• Health and Safety at Work Act 1974 - Section 2 requires employers to ensure, as far as reasonably practicable, the health, safety, and welfare of employees at work. This includes both physical and mental health.
• Management of Health and Safety at Work Regulations 1999 - These regulations impose a duty on employers to conduct "suitable and sufficient" risk assessments for health and safety, which includes mental health risks.
• Equality Act 2010 - Protects employees from discrimination, harassment, and victimisation. Mental health conditions are recognised as disabilities if they have a substantial, long-term adverse effect on a person's ability to carry out normal day-to-day activities.

Recent Trends and Mental Health in the Workplace

Mental health issues are increasingly prevalent in the workplace.  Mental health conditions now account for one in three Fit Notes issued by general practitioners. Furthermore, one in four people will experience some form of mental ill-health during their lifetime. The pandemic exacerbated these issues, with long-term implications for mental health and employee well-being. This increased prevalence places greater emphasis on the employer's duty to address and mitigate mental health risks.

Case Law

Several important cases illustrate the legal obligations of employers regarding mental health.

This landmark case of Walker v Northumberland County Council [1995] established that employers could be liable for psychiatric injury caused by work-related stress. Mr. Walker suffered a nervous breakdown due to excessive workload, and the court held that his employer failed to take reasonable steps to reduce his workload after his first breakdown.

In the case of Easton v B&Q Plc [2015]  Mr. Easton claimed psychiatric injury due to work-related stress, but the court found that B&Q was not liable as they were unaware of his condition and had taken reasonable steps to mitigate the risk once it was brought to their attention.

These cases highlight the importance of foreseeability and the employer's responsibility to take appropriate action when they become aware of an employee's mental health concerns.

Health and Safety Obligations

Employers have a general duty under the Health and Safety at Work Act 1974 to ensure the health, safety, and welfare of employees. This duty is underpinned by the Management of Health and Safety at Work Regulations 1999, which requires employers to undertake "suitable and sufficient" risk assessments.

The Health and Safety Executive (HSE) has developed Management Standards for Work-Related Stress, which outline key areas that employers should consider mitigating risks related to mental health.

The HSE Management Standards

These standards cover six key areas.

1. Demands: This refers to issues such as workload, working patterns, and the working environment. Excessive demands can lead to stress and mental health problems.

2. Control: This concerns how much say a person has in the way they do their work. Empowering employees with more control over their work can reduce stress.

3. Support: Encompasses the encouragement, sponsorship, and resources provided by the organisation, line management, and colleagues.

4. Relationships: Promoting positive working relationships to avoid conflict and dealing with unacceptable behaviour are essential for maintaining a healthy work environment.

5. Role: Ensuring employees understand their roles and do not have conflicting responsibilities.

6. Change: This relates to how organisational change is managed and communicated.

Reasonable Adjustments and Disability Discrimination

Under the Equality Act 2010, mental health conditions can be considered disabilities if they have a substantial and long-term effect on a person's ability to perform normal day-to-day activities. Employers have a duty to make reasonable adjustments to accommodate disabled employees.

This duty arises when the employer's “…provision, criterion, or practice” (PCP) places a disabled employee at a substantial disadvantage compared to non-disabled employees.

Common adjustments include:

- Phased return to work after illness,

- Modified duties or working hours,

- Relocation or reassignment of tasks,

- Specialist equipment

A key case illustrating this is Royal Bank of Scotland v McAdie [2007]. In this case, the employee was dismissed due to long-term sickness absence caused by stress and depression resulting from a grievance. The court held that even where the employer contributed to the employee’s ill-health, dismissal could still be fair as long as the employer went "the extra mile" to make reasonable adjustments.

Practical Steps for Employers

1. Risk Assessments - Employers must conduct thorough mental health risk assessments. This involves identifying stress risk factors, evaluating the risks, and developing strategies to mitigate them. Regular reviews of these assessments are important.

2. Mental Health Awareness - Educating managers and staff about mental health is critical. The Stevenson/Farmer review (2017), commissioned by the UK government, recommended developing mental health awareness in the workplace and creating an open culture where employees feel comfortable discussing mental health concerns.

3. Mental Health Plans - Employers should create and implement mental health plans that address the causes of work-related stress, provide support, and improve overall employee well-being. These plans should be regularly reviewed and adjusted to reflect the changing needs of the workforce.

4. Support Mechanisms - Employers should provide access to mental health support services, such as Employee Assistance Programs (EAPs), occupational health services, and mental health first aiders. These services can offer guidance, counselling, and support to employees experiencing mental health issues.

Conclusion

Employers in the UK have a legal duty to ensure the mental health and well-being of their employees. This duty is enshrined in the Health and Safety at Work Act 1974, Management of Health and Safety at Work Regulations 1999, and the Equality Act 2010. By following best practices, such as those outlined by the HSE Management Standards and the Stevenson/Farmer review, employers can create a supportive environment that promotes mental health, reduces absenteeism, and enhances productivity.

By taking reasonable steps to assess and mitigate risks, making reasonable adjustments for employees with mental health conditions, and fostering an open, supportive culture, employers can fulfil their duty of care, reduce legal risks, and promote a healthier, more productive workforce.

 

For further information and professional advice tailored to your specific circumstances, feel free to contact our team at Hempsons.

Andrew Davidson
Partner and National Head of Employment
Hempsons
Email: a.davidson@hempsons.co.uk
Phone: 01423 724129
X: @andrew_davidson

For more detailed insights, visit us at www.hempsons.co.uk.