An increasing awareness of mental health issues is leading to higher rates of disability discrimination claims in which mental rather than physical disability forms the basis of the claims. The number of disability discrimination claims has jumped by 11% over the last 12 months, from 6,511 to 7,211 (the highest number since 2012/13). In part, the rise in claims is due to the abolition of tribunal fees in July 2017, but there has been a marked increase in workers willingness to lodge claims related to mental health issues. This is likely being driven by heightened media attention on mental health issues, including social media campaigns such as Time to Talk Day, as well as initiatives spearheaded by the Duke and Duchess of Cambridge and Prince Harry. We are also seeing a growing preparedness among doctors to support workplace absences around stress, anxiety and other disorders.
Two recent noteworthy cases have highlighted the risks employers are exposed to and, in many cases, unprepared for. There is a widespread misconception that disability discrimination claims can only be brought in relation to physical disability. With the rise in the growing awareness of mental health issues, and related claims, HR teams may need to educate line managers, and adapt workplace policies and practices accordingly.
Last December, Adam Glover Bailie, won a disability discrimination case against the UK brokerage of US food processing company Archer Daniels Midland after suffering from clinical depression. This was followed by a case in January when Goldman Sachs settled a disability discrimination claim brought by a banker in London who alleged that the firm failed to accommodate his condition. The banker sued the investment bank for allegedly failing to provide workarounds for his attention deficit hyperactivity disorder and allegedly forcing him out of his job.
The important point about disability discrimination claims, and where employers often trip up, is that claims can be brought if an employer has failed to make an adjustment for a pre-existing condition. Often when new employees join the workforce these conditions are not well managed, which can trigger claims.
What, then, should HR teams be doing to manage the enhanced risk of disability discrimination claims arising from mental health issues? Aside from the risk of claims, failing to manage employees’ mental health can cause a number of organisational problems, including sickness absence, poor employee morale and reduced productivity and engagement. Here are some tips for HR teams:
- Line managers play a key role in supporting employees who have a pre-existing mental health condition or those who may develop one whilst working. HR should provide comprehensive guidance, support and training for managers on how they can best spot poor mental ill health, support their staffs’ wellbeing and manage mental health related absences;
- Look to develop and implement a Mental Health Strategy. Your strategy should contain a statement committing to relevant company values such as supporting staff, a positive environment for mental health at work, or a zero tolerance towards discrimination. The strategy should link in relevant policies, for example Stress at Work and Absence Management or Flexible Working policies. Benefits and support provisions (e.g. EAP, Occupational Health) should be part of your strategy, alongside any training offered. Mental health objectives should also be set and measured;
- Actively promote a positive and accepting culture around the awareness of mental health at work. As mental health issues often have a stigma attached, having the company actively signing up to initiatives such as the Time to Change pledge, promoting World Mental Health days or increasing staff awareness about mental health, can go a long way in staff being more open about their own mental health concerns;
- Consider implementing Mental Health First Aid (MHFA England) training in your organisation so that HR personnel or line managers trained as Mental Health First Aiders can provide a high level of support to employees experiencing mental health issues;
- Ensure consistency and fairness when following absence management procedures relating to mental ill health. HR professionals should also support with the timely referral of employees to specialist help (e.g. your Occupational Health team) where appropriate;
- HR and line managers should maintain regular contact (where appropriate) to help to prevent individuals on mental health related long-term absences from feeling isolated, and can assist with the development of an action plan for an effective return to work;
- Utilise support already available to your company. Many companies have Employee Assistance Programmes (EAP) in place, but do not actively promote or remind staff of its existence. The more actively you promote these services, the more they will be utilised by staff when they most need it.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.