Well-meaning employers are still struggling to understand how to properly support employees experiencing mental health problems, a leading solicitor has claimed. Contributor Lindsey Knowles – Kirwans.

Despite increased awareness of mental health conditions, many companies still believe that, when it comes to dealing with employees’ mental health, they only need to seek legal advice when a disability discrimination claim is made against them.

This failure to take preventative action, she said, not only risks exacerbating the employee’s condition, but also makes the business vulnerable to tribunal claims.

This follow reports that there has been a sharp increase in disability discrimination claims at employment tribunals, with Ministry of Justice figures revealing 6,550 such claims coming before the courts last year; a 37% rise on the previous year.

The growth rate of disability discrimination claims is eight times faster than the increase in claims as a whole, with the upsurge believed to be the combined effect of the abolition of tribunal fees in 2017 and efforts to reduce the stigma around mental health through various media campaigns.

In addition, a UK-wide stress survey commissioned by the Mental Health Foundation found that 74% of the UK were “overwhelmed or unable to cope” at some point between 2017 and 2018.

Almost one third (32%) of adults questioned said stress had caused them to feel suicidal, while 16% of adults said it had caused them to self-harm. Increased awareness and understanding of mental health problems can only, in the long run, boost businesses through reduced sick days and increased productivity as well as improving the overall health of employees. 

However, to get to that end goal, many organisations are having to undergo a shift in how they support workers battling these conditions. On the whole, employers want to get on board with this and make positive changes that will help employees, but often say or do the wrong thing simply because they don’t understand what is required of them.

By seeking professional legal advice as soon as their employee discloses their condition, employers can be sure they’re properly supporting their workers, while also protecting their business from future claims.”

In October 2017, the Thriving at Work report, commissioned by Theresa May and led by Dennis Stevenson and Paul Farmer, revealed that around 300,000 people with a long-term mental health problem lose their jobs each year.

It also found that mental ill health is costing employers up to £42billion a year.

The report made 40 recommendations and urged all employers, regardless of size, sector or workplace type, to adopt six mental core standards in their approach to workplace mental health. These covered mental health at work plans, mental health awareness for employees, working conditions, line management responsibilities and routine monitoring of staff mental health and wellbeing. Further recommendations, or ‘enhanced standards’ were made for larger organisations.

All businesses, no matter how big or small, can take measures to set up additional support resources in their workplace. These could range from arranging training for mental health champions to Employee Assistance Programmes (EAP) that offer a greater depth of support. An experienced solicitor will be able to advise on the range of precautions employers can put in place to ensure that employees feel supported should their mental health deteriorate.

Mental health and the law – a quick guide for employers
Some mental health conditions can be classed as a ‘disability’ under the Equality Act 2010. Under Section 15 of the Act, it is unlawful discrimination to treat a worker unfavourably because of an issue arising as a consequence of their disability, although employers can make the defence that the treatment was a proportionate means of achieving a legitimate aim.

In order to be protected under the Equality Act, workers have to show that their mental health problem is a disability, and that it has a substantial, adverse and long-term effect on their normal day-to-day activities. Certain conditions, such as addiction to alcohol or another substance, are excluded unless related to another condition which does meet the definition.

 Workers are covered by the law throughout the recruitment process, actual employment, and dismissals including redundancy.

Employers must make reasonable adjustments to work practices and provide other aids and adaptations for disabled employees.

As a rule of thumb, employers can’t ask potential employees questions about their mental health before a job offer is made, although there are some exceptions.

Employers could also be hit with a personal injury claim from affected employers. A judge would consider whether the harm suffered was reasonably foreseeable and what the employer did to avoid it occurring.

In addition, claims can also be made under the Protection from Harassment Act 1997, and employers should be aware that actions can still be brought for up to six years (three in Scotland).

Employers should seek advice on how to manage employees on sick leave due to stress to avoid being exposed to claims.

Employees could also resign and claim constructive unfair dismissal if they are not properly supported by their employers.

Don’t push your employee if they don’t want to talk about issues they’re going through. Instead, let them know that you’re available whenever they want to talk, and reassure them that you can support them should they need your help.