As mental health conditions take over from back pain as the main source of work-related illness, we know the importance of the emotional and psychological well being of our employees. This is the human response and makes good business sense.
ACAS chief executive Susan Clews reports that 66 per cent of employees say they have felt stressed and/or anxious about work in the past 12 months. The Centre for Mental Health estimates that mental health problems cost employers £26 billion ($32.4 billion) per year, given the cost of sickness absence, reduced productivity and hiring costs.
What should employers look for?
Unlike a broken arm, there are often no physical warning signs of a mental health condition. Confiding about a bereavement or a relative’s illness is common, but talking about one’s mental health is still not. Employees are even more reluctant to disclose their anxiety or depression if they have little or no control over their work or work volume, or have poor relationships with colleagues. Many will “soldier on” for long periods, providing limited information on fit/sick notes, before an incident triggers a disclosure.
From my experience, there are a number of warning signs to look out for: absences from work, changed behaviour at work (withdrawal or changes in mood), increased working from home, the avoidance of social events, long working hours and dips in performance.
Why does this matter?
If an employer is aware of an problem – or should have been aware – they need to support the employee concerned. They have a duty of care and an obligation to ensure that there is a physically and mentally safe place to work (which they must risk assess). Many mental health problems relate to factors outside the workplace; however, the working environment can exacerbate pre-existing conditions and symptoms. If an employee might be suffering from stress, anxiety and depression, adding to their workload – or even removing work without discussion - imposes further stress.
Long-lasting and substantial mental health conditions - or their symptoms - constitute a “disability” under the Equality Act 2010. This triggers obligations to make adjustments.The increase in disability discrimination claims in an employment tribunal is a salutary warning to employers that they can’t ignore their employees’ mental health at any time. In Baldeh v Churches Housing Association of Dudley & District Ltd, an employer was even held liable for discrimination when they dismissed an employee in spite of not having prior knowledge of the mental health issue, and only being informed in the appeal process. Read our blog about that case here.
How can employers protect themselves?
In light of this, there are multiple things employers should be thinking about.
1. Developing a culture that supports employee well being.
All employees play a role in their own and their colleagues’ well being. Employees at all levels of the organisation should be encouraged to speak openly about mental health in the workplace. Raising awareness and frequent training will help break down barriers and improve the misconceptions people have about mental health. Respected leaders sharing their challenges and mental health campaigns can be powerful in helping to reduce the stigma and the fear of repercussions.
Team leaders are the front line in identifying potential issues and their behaviour sets the tone. They need training in the organisation’s approach and how to have constructive conversations with employees. Specific policies on mental health should set out the support services in place and the steps to work through and how to escalate concerns. Informing employees where to go for support, without the embarrassment of going to their manager or HR, is key - the intranet, features in staff bulletins or information placed on the back of toilet doors can provide great pointers to the support and treatment available.
Many employers are able to offer advisory and counselling services through the employee assistance programme, which has proved successful in removing some liability. The increase in employees “self-medicating” with alcohol or drugs has also led to employers providing financial support for employees to enter treatment programmes.
2. Communication, communication, communication
Where the employee’s working hours or behaviour are of concern, the employer should initiate a discussion with the employee about their well being, work-life balance and any support that they may need. Many organisations use a traffic light system which triggers alerts if the employee has taken a certain number of sick days or has exceeded working hours.
For employees on long-term sickness absence, line managers should keep in regular contact with the employee to support their well being and provide reassurance (not criticism). Ahead of the employee’s return to work, employers should discuss with the employee whether a graduated return, reduced hours or adjustments would assist them.
Using return-to-work interviews enables the employer to be better informed and take effective action. Once employers are aware of a problem, they must pay special attention to how the employee is coping through one-to-one conversations.
Where the organisation is concerned about the support it needs to provide or an employee’s ability to perform their role, it needs to adopt formal discussions. Going through the meetings and steps in the mental health or capability policy needs to be documented to show that the employer discussed the issues with the employee and acted reasonably before making decisions. Equally, if the employee complains of the behaviour of a colleague, that “grievance” needs to be formally investigated and responded to, making arrangements to obtain the employee’s input when they are well enough or in writing.
3. Adjustments and support
The reasonable and legally sound approach is to support an employee with a mental health condition. An employer must look at the risks in the employee’s workload and working life and avoid exacerbating their condition.
Supporting an employee does not mean that the employer has to become an expert. Managers should be encouraged to give constructive feedback and work with the employee to resolve any issues. It is easier to manage your workflow and the employee by knowing the causes, symptoms and ways to accommodate them.
Employers should consider taking up the advice of the employee’s treating physician and/or of an occupational health provider to understand the employee’s condition and prognosis.
Where the employee is or may be disabled under the 2010 Act, employers have a duty to make reasonable adjustments to help an employee stay in work or get back to work. These often include flexible working hours, modifying duties or workload, changing the workspace, altering reporting lines, offering quiet rooms and ensuring regular breaks. These can be temporary or permanent and ideally agreed with the employee in advance.
4. Conscious decision-making
Ignorance is not bliss. An employee’s mental health potentially affects their work and may enable them to bring a claim against their employer. Recent cases are expanding the symptoms and conditions that are regarded as disabilities - many of which are invisible (fatigue and obsessive compulsive behaviour, for example). Employers must actively manage their employees, but they are equally required not to treat an employee unfavourably because of their disability or for “matters arising from it”.
When considering promotions, bonuses or who may be made redundant, performance and absences are often key criteria. However, decision-makers must disregard behaviours or absences (eg medical appointments) that are disability-related. This requires careful record-keeping and transparent processes.
Care must also be taken when an employer applies their normal policies or practices to employees with mental health conditions. The blanket approach could still be discriminating because the employee concerned is particularly disadvantaged. Take warnings for absence, for example. Many employers automatically warn and dismiss after a certain absence level has been triggered. However, following that approach without considering the connection to the employee’s mental health could prove costly. Employees who are disabled under the 2010 Act have the right to bring a claim for compensation and the injury to their feelings. The Employment Tribunal statistics show an increase in the claims made and the sums awarded compared with last year, and the highest single claims were for disability discrimination.
The mental health of employees may be affected by external factors but an employer can control the workplace environment. Supporting employees' confidence to raise issues, avoiding harassment and managing workloads is not only good financial sense, it is the right thing to do for the wellbeing of all employees.