Mental Health and the Workplace
- Employment Law
- 28th Feb 2023
Mental Health in the workplace and beyond is becoming a touchstone issue; something that affects most of our daily lives in some measure or another. The aim of this blog, put together by our Employment team, is therefore to consider how employers should manage mental health issues in the workplace, whatever the cause. Staff members […]
By Julie SabbaMLP Law
Mental Health in the workplace and beyond is becoming a touchstone issue; something that affects most of our daily lives in some measure or another.
The aim of this blog, put together by our Employment team, is therefore to consider how employers should manage mental health issues in the workplace, whatever the cause. Staff members suffering from mental ill health, work-related stress, personal problems or other triggering events must be treated carefully and considerately by employers in order to safeguard their wellbeing at work.
Employers must also, however, balance those needs against commercial concerns and the welfare of other employees, in determining appropriate action when faced with mental ill health in staff.
We are therefore going to consider the following topics:
- Managing sickness absences related to mental health;
- How to respond when mental health conditions amount to disabilities, including the duty to make reasonable adjustments;
- The impact of mental health conditions on other workplace issues, such as disciplinary and grievance processes;
- Effective wellbeing-related workplace initiatives; and
- The benefits of a positive approach to mental health and wellbeing, for employers and employees.
1. Managing sickness absences related to mental health
Periods of absence related to mental health problems are, at their core, simply sickness absences and should therefore be treated accordingly. It is, however, important to recognise certain aspects of mental health absences require a more tailored response.
Dealing with an individual who may be experiencing mental health issues
While managers are often less confident in dealing with mental ill health than physical ill health, the approach should be fairly similar, with a focus on how best to support the individual back to work and/or to perform at their best.
While it can seem difficult to know how best to approach and talk to an individual who may be experiencing mental ill health, early action can prevent the individual becoming more unwell, and may lead to concerns being resolved before they escalate or worsen.
Therefore, a manager who believes a team member may be experiencing mental ill health should take the lead and arrange a meeting as soon as possible to talk to the team member in private. The conversation should be approached in a positive and supportive way.
If the individual informs their manager that they are experiencing mental ill health, the manager should:
- move the conversation to a private space, where they will not be disturbed (if not already somewhere appropriate)
- thank the individual for coming to talk to them
- allow them as much time as they need
- focus on what they say
- be open-minded
- try to identify what the cause is
- think about potential solutions
- be prepared for the unexpected, and
- adjourn the meeting if it is necessary to think through what has been discussed before making a decision
The correct formal process
If such conversations result in a period of absence or the employer is faced with an employee who is absent due to mental ill health, managing this will require the usual processes used where there is physical ill health – communicating with the employee, obtaining medical evidence and holding formal meetings to discuss the best way forward, with all stages recorded in writing – but with adaptations to address the unique aspects associated with mental ill health.
Some issues to look out for:
- the fact that recovery timeframes can be much less certain than, say, a broken leg;
- when obtaining medical evidence, it can be useful to include some commentary regarding any noted changes in the employee’s demeanor or behaviour, to ensure that the OH specialist has a complete and detailed picture; and
- Return-to-work plans may need to be reviewed more regularly than you would with employees who suffer from physical impairments, to allow subtle amendments once the plan is in practice – eg an employee who had planned a phased return finds that the pace of increase in their days is too fast.
2. How to respond when mental health conditions amount to disabilities, including the duty to make reasonable adjustments
Supporting the individual
If an individual’s mental ill health amounts to a disability, the organisation must consider making ‘reasonable adjustments’ to help them carry out their job without being at a disadvantage.
However, even if the individual does not have a disability, it makes sense for organisations to make
changes that will help staff attend work and/or reduce the pressures on their mental ill health.
Small simple changes to working arrangements or responsibilities may be all that is required, eg allowing them to have more rest breaks, or working with them each day to help prioritise their workload.
Any adjustment should only be made following discussion and agreement between the manager and individual on what might be helpful and what is possible; the individual will often know what support or changes they need.
An Occupational Health referral can also help to identify adjustments that should be made.
Any agreed adjustment should be documented. Any change should be regularly monitored and reviewed to check that it is providing the support required.
The employer should avoid making assumptions about the individual’s capabilities, whether they are suitable for promotion or the amount of sick leave they may need because of a mental health issue. It may be useful for the individual to draw up an ‘advance statement’, explaining eg the signs that the individual is unwell, how they want to be treated in those circumstances and whom to contact – I’ve had a client who had an employee who requested a quiet space; somewhere to go to feel calm in times of stress or upset and found it beneficial to know that this was agreed in advance, should it be needed.
If the employee is able to come back to work after a long absence or is absent intermittently, reasonable adjustments for a mental health condition might include:
- reducing hours (eg if ability to concentrate for long periods is affected)
- changing start and/or finish times
- reducing the workload (particularly if there is a suggestion that overwork has caused or contributed to the issue)
- allocating the employee a different type of work
- moving the employee to work with different colleagues
The employee’s views should be canvassed if possible.
Supporting other members of staff
When other members of staff become aware that a work colleague is experiencing mental ill health, they may find it distressing. A manager should be prepared to support the team more than they usually would, eg:
- being around their team;
- having catch-ups with each member on how they are doing;
- making it clear that they are available at any time to talk about any concerns or worries a team member may have; and
- promoting the use of any additional support services (such as mental health first aiders or employee assistance programmes), so that staff understand how they may benefit from using them.
Care should be taken not to put extra responsibilities or have unreasonable expectations of colleagues, as that can cause them unnecessary pressure. Communication with the whole team is vital and should be agreed with the employee, to ensure confidentiality is maintained.
Managing a period of absence related to mental ill health
Sometimes staff experiencing mental ill health will need to be absent from work for a period of time, eg because they are too ill to work or because the medication they are on means they are not able to safely carry out their work.
To support staff while they are away from the workplace, a manager should:
- agree when and how regular contact will be maintained during the absence;
- be positive, professional and supportive at all times;
- agree what the team member would like their work colleagues to know about their absence and how they are doing;
- not pressure the team member to return to work before they feel ready;
- encourage a phased return; and
- use Occupational Health where practicable to look at ways the organisation can support the team member return to work.
Maintaining regular contact is vital. Lack of contact can lead to misunderstandings, make the team member feel that they are not missed and make it much harder for them to return. Sometimes, it may be appropriate to arrange to meet up in a neutral venue away from the workplace to catch up.
An absent team member may request no contact, but according to Acas it is important that a manager does not accept this, unless the individual alleges that the manager has been a factor in their mental ill health, in which case it may be preferable for contact to be with another manager or HR.
For additional support, many organisations have a contract with an Occupational Health provider. Occupational Health can assess the team member and suggest adjustments that could be made to help the team member return to work.
Helping an individual return to work
When a team member is ready to return to work, it is important to ensure that they feel supported and understand what will be expected of them on their return.
A manager should consider meeting them away from the workplace before they return to discuss their return and alleviate any concerns they may have. A return-to-work interview should also be held once they do return. It provides a good opportunity to:
- welcome them back to work;
- check they are well enough to return;
- update them on any workplace news they may have missed while away;
- discuss their absence;
- discuss any worries the person has about returning to work;
- confirm their working arrangements and what plans and adjustments are in place to support them in their work; and
- allow them to ask questions.
HSE suggests that it can be helpful to have a written plan for the employee’s return to work and re-integration into the workplace, including agreement as to when the individual will have reached the stage of ‘business as usual’, when existing management processes can be used to review their performance, needs and work plan.
3. The impact of mental health conditions on other workplace issues, such as disciplinary and grievance processes
First, it is important to have processes in place to anticipate, recognise and react to mental ill health presenting in the workplace. The most common place to start is with the employee’s line manager.
The role of a manager
The Acas guidance emphasises that managers play a crucial role in the everyday well-being of staff. They should be:
- approachable, available and encourage staff to talk to them if they are having problems;
- tailoring their management style to suit the needs of each staff member;
- monitoring staff workloads, setting realistic targets and being clear about priorities; and
- having regular one-to-ones and catch-ups to check on how work is going, identifying upcoming challenges and what support may be required.
Additionally, a manager should have the confidence and knowledge to manage any mental health matters. They should:
- b e able to recognise some of the common signs and symptoms of mental ill health (we will consider some of these below);
- know when and how to intervene; and
- know what additional support is available for them and the employee within the organisation.
Employers will need to ensure that these responsibilities are reflected in managers’ job descriptions, and that managers receive adequate training.
Identifying an individual who may be experiencing mental ill health
The sooner the employer becomes aware that an individual is experiencing mental ill health, the sooner steps can be taken to prevent it becoming more serious, and to provide support. While a manager should never make assumptions, signs of mental ill health include:
- changes in the person’s usual behaviour, mood or how they interact with colleagues;
- changes in the standard of their work or focus on tasks;
- appearing tired, anxious or withdrawn and reduced interest in tasks they previously enjoyed;
- changes in appetite and/or increase in smoking and drinking alcohol; and
- an increase in sickness absences and/or turning up late to work.
Not everyone who experiences mental health will exhibit obvious signs, and so it is important for a manager to regularly ask individuals how they are doing and create an environment where staff feel able to be open and honest about how they are feeling.
HSE also advocates using routine management tools, eg scheduled work meetings, appraisals or informal chats about progress to find out what problems an individual may be having, and having health and safety as an agenda item at meetings.
Wellness action plans
According to the charity Mind, wellness action plans (WAPs) are an easy, practical way for employees to support their own mental health at work and, for managers, to help them to support the mental health of their team. WAPs typically include:
- triggers, symptoms and early warning signs
- how mental ill health may impact performance, and
- what support the employee needs from their manager
Managing an individual who may feel unable to talk
I f an individual does not want to talk about issues they are going through, the manager should not try to rush them or pressure them to talk; it may be best to simply ensure that the individual knows the manager is available at any time, to talk about anything, and then monitor the situation. If the manager continues to see and hear things that concern them, they may need to seek further advice and guidance from HR, senior management or Occupational Health.
Managing conduct and capability issues
As Acas points out in its guidance, most staff who experience mental ill health will recover and return to being a valuable and productive member of the team. However, in some instances, even where adjustments are in place, the employer may need to take formal steps to deal with an individual’s performance or conduct. Before taking action, a manager should consider whether:
- additional adjustments or further support may improve performance or conduct
- other lighter duties or a transfer to different role may be available
Arguably, the same is true of staff who experience stress that leads to some form of illness, eg anxiety or depression.
If further action is necessary, the manager must follow the organisation’s procedures for handling these matters and ensure that a fair process is followed.
The employer should consider the following:
- work-related stress or mental ill health may manifest itself initially as a misconduct or poor performance issue; if there is a suggestion that the alleged misconduct or poor performance by an underlying medical condition (or by the medication the employee is taking), the employer may need to change tack;
- if there is a suggestion that the sickness absence, alleged misconduct or poor performance is caused by an underlying medical condition (or by the medication the employee is taking), consider the need for medical evidence at an early stage;
- where the employee is experiencing work-related stress or mental ill health, the employer will need to handle conduct and capability issues sensitively;
- in particular, if the employee has a disability, the employer should consider whether adjustments are needed to the process in question; and
- if dismissal is a possible outcome, consider possible alternatives.
It is important for employers to handle mental health issues sensitively, ensure that the employee is consulted and that medical evidence is considered before any decision to dismiss is taken.
The non-statutory Acas guide on discipline and grievances at work covers ill-health dismissals and has a section on specific health issues such as stress, alcohol and drug abuse. The guidance suggests:
- consideration should be given to introducing measures to help employees, regardless of status or seniority, who are suffering from alcohol or drug abuse, or from stress. The aim should be to identify employees affected and encourage them to seek help and treatment; and
- employers should consider whether it is appropriate to treat the issue as a medical rather than a disciplinary matter.
4. Effective well-being related workplace initiatives
Mental Health Champions or Advocates in the workplace are becoming increasingly popular. These are points of contact in an organisation that can approached to offer initial advice to members of staff and to facilitate workplace initiatives, putting health and wellbeing at the forefront of your organisation’s workplace culture.
Going above and beyond the legal requirements with employee engagement software
Prioritising mental health in the workplace extends beyond legal compliance; it is a pledge to building a happy and resilient workforce – and ultimately, putting your people first.
A commitment to mental health not only enhances employee well-being, but also contributes enormously to productivity, innovation, loyalty and so much more – but many organisations struggle to identify where to start, or how to support their teams in the best way.
Through hosting mental health resources, feedback communication channels, and employee wellbeing surveys, platforms like these hold space for employees to safely voice their challenges and concerns, which helps to create a culture that goes beyond statutory requirements and instead puts wellbeing at the forefront.
There are various initiatives, focusing on health and social well-being, here are some examples:
- Provide healthy snacks
- Make lunch breaks mandatory
- Reward staff for a job well done with a healthy lunch
- Reinforce the importance of sick days & time off for those with health issues
- Ensure that your work environment has plants & lots of natural light
- Set up mental health resources for employees
- Organise a walking meeting
- Try out company exercise challenges
- Set up situations that encourage colleagues to mingle informally
- Start an employee recognition programme
- Provide company swag that actually contributes to employee wellbeing (water bottles, beanies, fitness gear)
- Invest in their development
- Plan regular team-building exercises
- Arrange topical webinars
- Normalise flexible working
5. The benefits of a positive approach to mental health and well-being, for employers and employees
Reasons for tackling work-related stress and mental ill health
In general terms, helping employees to manage their mental health in a positive way can help to:
- make staff healthier and happier at work;
- improve performance and productivity;
- reduce absence levels;
- reduce workplace disputes, and
- make the organisation more attractive to job seekers
It is generally accepted that healthy and motivated people will:
- go ‘the extra mile’
- give good customer service
- take fewer sick days off work, and
- provide commitment and creativity
Good employment relations are built upon :
- effective policies for managing people issues such as communication, absence, grievances and occupational health
- high levels of trust between employees and managers; trust is often nurtured by involving employees in decision-making and developing an open style of communication
Mishandling a work-related stress or mental health issue could also give rise to claims in respect of :
- breach of the implied term of trust and confidence, triggering a constructive dismissal
- breach of the statutory duty to:
- assess the risk of stress-related ill health arising from work activities, and
- take measures to control that risk
- negligence or breach of the common law duty to take reasonable care eg to ensure that the duties allocated to the individual do not damage their health
- unfair dismissal (whether constructive or not), if there is no fair reason to dismiss and/or the employer fails to follow a fair procedure
- prohibited conduct (discrimination etc) under the Equality Act 2010
All in all, it makes sense for employers to get ahead of the issue, to allow them to tackle and manage the impact of mental ill health on their business or organisation with confidence.
About the expert
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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