Joined-up thinking about mental health
January can be a miserable month. Indeed, for employees who are already stressed or struggling the challenges of a new year can seem insurmountable.…
January can be a miserable month. Indeed, for employees who are already stressed or struggling the challenges of a new year can seem insurmountable. It is known that the dark first months of the New Year can be a trigger for relapse for those that suffer with mental health issues.
Mental illness is not only the largest illness among people of working age. In fact, leading academics suggest, it actually accounts for half of all disability among people in that age group; as much as the combined effects of back pain, heart and pulmonary problems, diabetes, and cancer. At a very basic level it makes commercial sense for employers to focus on mental health.
Managing mental health at work
While ‘work related stress’ or ‘anxiety’ are regularly cited on medical certificates, and are now part of the everyday HR lexicon, mental health issues remain significantly less well understood than physical ill health. Many employers still feel uncomfortable about tackling or even discussing these issues. Often, employers are unsure about how to tackle mental health absences as part of a sickness absence management process.
As a rule of thumb, where the number or length of absences for an employee suffering with a physical illness would trigger an occupational health referral or some other medical assessment, the same steps should be taken for an employee with a mental illness. However, it is important to bear in mind the duty to make reasonable adjustments where an employee suffers from a mental illness, especially where the condition may constitute a disability. The majority of disability discrimination cases we deal with include allegations that the employer has fallen short in respect of this obligation.
When is a mental health condition a disability?
The Equality Act 2010 widened the definition of ‘disability’ particularly regarding mental ill-health. Gone is the former need under the Disability Discrimination Act 1995 for a mental illness to be ‘clinically well-recognised’. Instead the Act focuses upon the effect caused by the mental illness and whether it has a substantial adverse effect on the normal day to day activities of the individual. This consequently means that ‘stress’ and ‘anxiety’ can result in an employee falling within the definition of disability under the Equality Act 2010.
Disability is one of the ‘protected characteristics’ set out in section 4 of the Equality Act 2010. An Employment Tribunal claim for disability discrimination can potentially attract an uncapped award.
Prevention is better than cure
What sets mental well-being being apart from physical illness is arguably an employer’s ability to proactively support and promote employee health.
It may help to put in place a mental health or well-being policy. Such a policy could include a process to facilitate discussion between managers and employees regarding the nature of the illness, the impact on the employee’s ability to work and what, if any, adjustments can be made within the employee’s working environment to assist their return to work or to enable them to remain in work.
It is good practice wherever possible and where resources allow, to refer employees to occupational health when an employee has had repeated or long term absence for stress, anxiety or another mental illness (or at least to obtain an expert medical view from somebody like the employee’s GP). This will enable you to make an assessment of whether the employee already does, or may, fall under the definition of disability under the Equality Act and what assistive steps might be most helpful for that individual employee. Seeking timely medical advice is the best way for any employer to make sure that it fulfils its duty to make reasonable adjustments and constructively engages from an early stage with an employee suffering from mental health difficulties. It is always safer to assume that the employee’s condition may be a disability, even if you or your medical advisors are not certain whether it is or will be.
How can we help?
Joined-up thinking is crucial to tacking mental health problems at work but education on the issue is often narrow and focuses on managing absence once an employee becomes unwell. Our forthcoming seminar will take a holistic approach to wellbeing, drawing on expertise from different disciplines to provide a balanced approach to the problem. The session will look at the causes of stress and proactive ways of dealing with stress through employee engagement as well as the legal and HR aspects of managing mental health. This interactive event will take a fresh look at a very pressing problem. We would love to see you there.