The health and safety of employees at work has long been a focus for employers.
Increasingly though, the rhetoric around protecting employees in the workplace has broadened to include mental health, especially now given the widely publicised mental health crisis that has been fuelled by the pandemic.
Historically, mental health has been a taboo topic. Especially in the workplace. But over the last year or so the tide has turned, partly due to the pandemic and the awareness of the damaging effect that lockdown had.
However, the way that workplaces deal with those issues from a legal standpoint still has some way to go.
Firstly, it’s important to stress that mental illness is a protected characteristic in the same way as a physical disability.
Where the mental illness impacts the individual to the extent that it becomes a disability under the Equality Act 2010, a business must do all that is practicably possibly to adapt the individual’s working environment, roles and responsibilities to better meet their needs.
Failing to do so will result in a breach of the Equality Act 2010 and could land you in hot water.
While that seems like a very fair and practical approach in cases where an employee has flagged an issue or an employer knows enough about the individual’s condition to believe that they would fall within the remit of the Equality Act 2010, we are seeing more cases where employers simply ‘suspect’ something isn’t right and are less confident about what to do.
Primarily, employers must ensure a workplace is conducive to good mental health, so being mindful of out of hour’s expectations, workload, and the general culture amongst staff is important. This can help prevent issues arising.
Anyone who is displaying unusual behaviour – such as regularly arriving late, getting upset or struggling to keep up with the job demands– may appreciate a friendly ear. Training for management can help in those situations.
However, beyond that it is important to monitor behaviour that may pose a risk to the individual themselves, or others. At that point, employers have a legal duty to step in.
Furthermore, now that the mandate to work from home ‘if you can’ has been lifted we are also receiving enquiries about how staff who do not want to go back into the office – either because it causes them anxiety, or because they are clinically vulnerable – should be managed, and what obligations employers have.
Again, we would advise that employers consider what adjustments could be made to appease these sorts of concerns, especially where the individual does, or may have, a disability.
A conversation about what changes can be made might resolve the matter – putting them close to a window for better ventilation or changing their working hours so that they don’t have to commute during rush hour are simple changes that might easily be accommodated.
If that doesn’t work, consider whether the individual can perform their role as effectively from home in the longer term (if they have managed to do so over the last year or so, an employment tribunal may question any decision to blanket ban this moving forward).
If this still doesn’t resolve matters, I would advise getting professional advice on the best course of action to protect both the business, and the welfare of the individual.
Through the work we do with our clients, we know dealing with these matters can put additional pressure on a business, especially where there isn’t a dedicated HR team, or where the team is small.
However, it’s important to remember that you do have a duty of care to help, especially in instances where their challenges are caused by work related stress.
That way, it is far more likely that they will be able to return to their duties sooner which is in the best interests of all.
If you would like to discuss this issue contact the Banner Jones employment law team today.
