The unseen disability : when mental health affects employee wellbeing


Last week was Mental Health Awareness Week and an important reminder for employers to revisit their practices and ensure that their policy and culture match up to best practice

Awareness of mental health issues has started to increase following several high-profile campaigns, but how many employers still avoid difficult conversations with their staff despite their legal responsibilities and the evidence that addressing these issues increases profitability?

According to the Health & Safety Executive, over 11 million working days are lost each year because of stress in the workplace. Research by MIND, the mental health charity, found that an enduring culture of fear and silence around the issue was a big cost to employers, with over 20% of workers contacted reporting that they had called in sick to avoid workplace stress, and 30% saying they did not feel they could speak openly with their line manager about the issue if they needed to.

These figures highlight the need for companies to have strategies focused on mental health as part of general employee wellbeing, to address stress-related absence and to avoid potential complaints or even legal action from staff.

Employers have a legal duty to protect employees from stress at work by undertaking a risk assessment and acting on it appropriately. In addition, where an employee is suffering from a mental health condition that has a long-term effect on their ability to carry out day to day activities, this may mean that their condition amounts to a disability, which would require the employer to make reasonable adjustments to help them in the workplace under the Equality Act 2010. The Equality Act also makes it unlawful for an employer to treat a disabled person less favourably because of their disability.

It is important for employers to know about any medication being taken if it may affect an employee’s ability to undertake tasks or operate machinery. Therefore an open culture in which employees feel comfortable and understand how to raise such matters is vital.

Best practice is for employers to have clear policies that are reflected in the company’s culture, so that a manager who notices a change in personality, evidence of low mood or periods of increased absence, will feel well equipped to enquire if any workplace support is needed. This needs to happen in a supportive environment where the employee feels comfortable in opening up and asking for help, if required.

Avoiding an atmosphere where an employee feels that raising the issue of mental health may affect their future prospects or that they will feel stigmatised by asking for help is vital and unwillingness to talk can make it more difficult for employers.

These difficulties have been highlighted in disability discrimination claims that have reached the Court of Appeal. One involved a former employee of Newport City Council, who had been off work on three separate occasions for stress-related illness and depression. Finally, the Council asked an occupational health advisor for an opinion on whether the employee was fit for work. The opinion given was that he was not a candidate for ill-health retirement and that he was not disabled for discrimination purposes. When he was subsequently dismissed following allegations of bullying, he brought a claim of disability discrimination. The Council said that it relied upon the opinion of an occupational health expert, but the Court of Appeal said that an employer must make a factual judgement and cannot “simply rubber stamp the adviser’s opinion”.

This need to look more carefully was highlighted in another recent case, involving an employee who had been resistant to discussing her health issues and would not allow contact with her GP. This time the Court of Appeal found in favour of her employer, Liberata UK Ltd, because the company did all it could “reasonably be expected to have done” as it did not rely solely upon occupational health advice, but reviewed the advice in light of its own experience and impressions of the employee, and undertook their own further investigations.

To create and maintain a culture of wellbeing, an employer should start from assessing how best to provide everyone with responsible support and protection from unfair or discriminatory treatment and should be reflected in processes and practice. If anyone has issues that impact on how they may perform a particular function – whether related to physical or mental health – then it’s important to look at how to introduce reasonable adjustments to enable them to fulfil the role.

Julie Taylor

Employment Law

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