Show notes
Join our employment experts Rebecca Cairney, Nick Newman and Mark Landon, as well as special guest Kim Farrelly, in this latest edition of Employment Insights. This special edition podcast is the latest publication from the Mental Health in the Workplace campaign, focusing on how employers can assist and manage those with mental health issues within the working environment.
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Transcript
Rebecca Cairney: Hello! This is Rebecca Cairney, principal associate in the employment pensions and immigration team at Weightmans, based in Liverpool. We've got a bit of a different format for you in this employment insights podcast today where I'm joined by Nick Newman, a partner in our Leeds office, Mark Landon, a partner in our London office and Kim Farrelly, the support team coordinator, who is also based in Leeds.
Rebecca Cairney: Nick, welcome to the employment insights. Podcast are you able to tell us a little bit more about what to expect from this episode.
Nick Newman: Of course, thanks. Rebecca.
Nick Newman: So this podcast forms part of Weightman's focus on mental health in the workplace. And we're we're running a variety of podcasts and other sessions that deal with a variety of different angles. Looking at mental health in the workplace, so some listeners might well have.
Nick Newman: seen our recent panel event involving Weightman's very own Hannah Beddis, who is a partner in the Leeds office.
Nick Newman: And a number of external experts, including a consultant psychiatrist. Dr. Keogh, and a lady called Christine Clark, a trainer for mental health, first aid England.
Nick Newman: So with that in mind listeners should very much keep an eye on our website and social media in relation to other matters involving mental health in the workplace. As you mentioned, Rebecca, for today's, podcast we're joined by mark and Kim.
Nick Newman: So I will hand over to them to give you a brief introduction.
Mark Landon: Thanks very much, Nick. My name is Mark Landon, and, as has been mentioned, I'm a partner in the employment team in the London office. I'm also actually a member of the Ethics Committee of the Faculty of Occupational Medicine and a Fellow of the Role Society of Public Health and Mental Health is very much on the agenda for both of those organizations.
Nick Newman: Kim, do you want to introduce yourself?
Kim Farrally: Thanks very much. I'm Kim. I'm a legal secretary in the employment team based in Leeds. And I'm also a trained mental health First aider
Rebecca Cairney: Thanks very much, guys. So so let's kick this off, then. So Mark, are you able to sort of talk us through a little bit? About the legal backdrop from an employment law perspective?
Mark Landon: And I think the first thing to say is that health and safety is paramount, and of course employers are an obligation to provide both a safe physical and mental workplace which may necessitate obtaining expert guidance and considering appropriate workplace adjustments for anybody who may be suffering from mental health problems where mental health manifests itself in things like poor attendance, performance, or misconduct, then, of course, equality, legislation may be relevant, and primarily we think of disability, discrimination, but sometimes other protected characteristics that might be relevant for example, stress or anxiety resulting from race related bullying.
Also Of course, if you get to the stage where someone's employment may be in question, then the requirements of fair dismissal legislation come into play. I mean, typically the key practical considerations boil down to. Does the employer have up to date policies and processes, and have staff been well trained to understand those processes.
Do management act promptly and proactively, especially in terms of preventive action? Do management make well-informed decisions, seeking expert guidance from occupational health clinicians and others at the relevant times. Do management have regard to timely, reasonable workplace adjustments, and do they adopt to fair procedure, and ideally, it should be one in partnership with the employee. And most important of all, I think, is where an employer can create a culture of trust and confidence, such that Staff, who are experiencing mental health issues, feel confident in coming forward and saying that they need help.
I mean having spoken about the the background. Law that, Nick. what do you see happening in practice?
Nick Newman: Thanks very much, Mark. Yeah. First of all, I would. I would very much endorse all of what what you've said.
In in my particular practice area of employment law on a day to day basis, we have clients who who seek advice on issues relating to mental health in the workplace, and indeed, clients taking advice on how best to deal with claims that they might have received which to varying extent involve mental health in the workplace angles.
So on the claim side, and and and in that context, I mean talking about employment tribunal claims, a significant number that we, as a firm, deal with will have some form of mental health angle to them.
This can be issues, such as claims arising from the duty to make reasonable adjustments under the Equality Act that Mark has mentioned but also more generally leaving aside claims for a moment, we will see a significant number of clients seeking advice for how best to deal with, for example, grievances from employees who are alleging that their employer is failing to support them in the workplace which is, is sometimes going hand in hand with an assertion that that's impacting upon their mental health. Or, indeed, if those particular employees have particular mental health concerns, there's a question as to whether or not their employer is appropriately supporting them. So that goes back to that point about reasonable adjustments I made a moment or so ago.
And the data that we have suggests that of all of the claims brought under the the wider heading of disability discrimination under the Equality Act of which there's a significant number, we think about 60% of those will involve mental health related issues. So it's a really big issue in the workplace, not only for employers, but also, of course, for employees who are in some circumstances suffering with with issues in the workplace that they need the support of their employer on.
Rebecca Cairney: Thanks, Nick. That's a that's a really high statistic. About 60%, isn't it?
Nick Newman: Yes, it is. Yeah.
Rebecca Cairney: So so I suppose.
Rebecca Cairney: do any of you guys have any particular concerns about what employers might have had to face, and when they're dealing with such claims.
Mark Landon: I think in my experience. you know, I spent 10 years as an in-house lawyer. And it was quite apparent that managers felt much more comfortable dealing with physical health. Than mental health and and I do think there is a a genuine concern on the part of employers about. I don't want to say the wrong thing.
I don't want to make it worse sometimes, frankly, a fear factor, because I think when you're looking at things like depression and anxiety. you know, I've had one or 2 managers say to me that their reluctance to be proactive is that it can be a little like holding up a mirror to themselves and a lot of what they're told by the member of staff who's struggling resonates with them. And I think in the past, particularly in hierarchical organizations.
there has perhaps been a sense that if you reveal, you're struggling somehow, it's an indication of weakness, and your gonna harm your career. And that's why I think a lot of people have kept quiet, and often therefore, made things worse. And I and I do think that's why the most single, most important thing is, if an organization can create a culture whereby it's not seen as taboo to talk about health. And I think for those managing people with mental health issues. Yeah, of course, they need to go and ask for guidance and support. What? Why should they know how to do it?
And I think you know, making sure that they engage with Hr. With external experts, so that they can make well informed decisions about how best up to support stuff is really important. But you you've got to start with the culture, and you've got to give people the confidence to be able to help those whom they manage who are suffering through any sort of mental health issues.
Nick Newman: Yeah, I think that's exactly right, Mark. You've of course, got the moral and ethical angle to this as well, and the the need to ensure that the people who need support are provided with support. And I definitely agree. But
Nick Newman: perhaps
Nick Newman: there's a school of thought among some managers that might suggest that for those physical conditions which are a little bit more easy to spot
Nick Newman: they know the sort of support that can be provided, and therefore it's offered.
Nick Newman: That much easier. Sorry. It's offered in a way which the managers just instinctively know what to do. You know if, if, for example, you've got somebody who has a physical condition, which means that somebody has a difficulty tackling the stairs.
Nick Newman: There is perhaps a much more obvious way in which
Nick Newman: support can be offered, whether that's through moving meeting rooms or meetings to a ground floor location, for example, or something similar, whereas
Nick Newman: dare I say, I think there's a little bit of a fear of the unknown when it comes to
Nick Newman: to the mental health side of things. And and indeed, I think there's employers out there who
Nick Newman: know a little bit about the law, or indeed there's there's many who know a lot about the law. Those who perhaps don't know as much will understand that they can make certain decisions.
Nick Newman: For example.
Nick Newman: when it comes to looking at employers with less than 2 years service, they have. They have less protection than than those who have more than 2 years service, and sometimes that can bring with it some concerns or issues from the the employers side, because they feel that they can act in a way which may well not be particularly appropriate without necessarily knowing that.
Nick Newman: for example.
Nick Newman: rights in relation to the discrimination law, arise from day one, or indeed, even before day, one in the context of recruitment. So it can be a real a real, difficult issue, for
Nick Newman: it can be a real difficult issue for employers to have to contend with largely because there's a lot of stuff that they don't know
Nick Newman: and obviously, that's where the need to sometimes take expert advice from the likes of occupational health or other
Nick Newman: external professionals is really important to be alive to. And highlight.
Mark Landon: Yeah, I think the other thing, of course, is, yeah. There's a thing around the social model of disability and the medical model of disability. And the modern thinking is that you know, in the past. if someone had trouble tackling stairs, what you did was to try and fix them, or provide some equipment whereby they could use the stairs. The social model of disability says, Why are you requiring them to use the stairs at all?
And I think with mental health. One of the things that is sometimes highlighted is when people are suffering from stress or anxiety, perhaps through the nature of the work that they do. It's an important opportunity for an employer to step back and say, actually, is perhaps the way that we require people to work at fault. You know? Are we creating problems? And should we step back and take a look at what it is that we do, and how we do it?
As always, I think, with disability related adjustments. Often there is a beneficial, consequential effect for non-disabled people, because what it does is to get the employer to stand back and say, actually, is there a better way of doing what we do?
I mean, Kim, you are one of our mental health first stages, and you're probably sitting there thinking typical 2 partners spouting on without any experience of the co-face within their own firm. So
what have you seen in terms of people coming forward and saying they're struggling. And what have you seen in terms of the practical help that can be given?
Kim Farrally: Thanks, Mark, actually. And what you've both said is actually really good points.
Kim Farrally: So, just to give you a little bit of a background fact which does blend into what you 2 have both said is one in 4. People will actually experience a mental health problem each year. and that doesn't matter where you stand in the company. You could be one of the big bosses, you could be the managing partner. It doesn't discriminate. It will affect anybody at any level. So I think by doing things like this it makes people feel able to step forward because that one in 4 person may never have dealt with a mental health problem before, and may not feel like they can approach somebody.
Whereas if organizations are making this as well known as it should be, that mental health is treated the same as physical health. It will give that person that's never dealt with something like that before they feel like they can step forward and they can voice what they need to voice. So actually, what you said is something that would really help employees and employers to acknowledge and be able to deal with mental health problems a little bit better like to do with physical.
Nick Newman: Yeah, yeah, I think that's right. I mean, Kim, how long have you been a mental health First aider?
Kim Farrally: Oh, good question. So I think it'll be around 3, 4 years
Nick Newman: and over that time. Have you seen a different? I mean, of course, that that covers Covid? And I think certainly I think one of the positive benefits of Covid has been a a greater recognition of mental well being.
But have you seen any sort of trends or changes over the last 4 years in terms of the willingness of people to seek help.
Kim Farrally: Yeah, I have massively. And I think it's because people feel more comfortable and feel less judged to talk about the mental health. And it's not just people I know, like doctors and they they can deal with it a little bit better as well. So they've not the people that are struggling feel like they can also go to the doctor and be able to get the help that they require.
Nick Newman: Yeah, yeah.
Nick Newman: yeah, it's interesting.
Nick Newman: It's interesting. You mentioned Mark about Covid, because, as you say, there's been a whole host of benefits that that has brought to to the workplace, oddly enough, but I think one of the the potential at least downsides to it has been an increased
Nick Newman: amounts of working from home, which clearly has a benefit to it in in many situations, but also means that
Nick Newman: it's. It's perhaps harder for an employer to spot when somebody's struggling, because they don't necessarily have those queues that you might ordinarily see when it it comes to somebody's attendance in the office, or or other type of workplace. So Covid is, as I say, definitely brought some positives. But II think it's made the job of
Nick Newman: spotting
Nick Newman: potential issues that much harder as well. And therefore it really heightens the the need for everybody to be alive to this issue. Yeah, yeah, no. I think that's right.
Asking someone on a zoom call, are you all right? And they say, Yes, I'm fine is a world of difference from sitting across a desk and all the visual signs, Tell you , that they are clearly not fine.
Nick Newman: Yeah, absolutely. And in fact, Kim gave us a talk not so long ago on on this topic. And she made a really good point. That your natural instinct, I think, is for for somebody to to reply to.
How are you with? I'm fine.
Nick Newman: That's just almost human nature, and it really does require a bit more thought to then say to them.
Nick Newman: Are you sure? Or let's go grab a coffee, and we'll have a a proper catch up if you get some of those visual queues that that suggest that maybe the outward facing I'm fine wasn't quite wasn't quite the full answer.
Kim Farrally: yeah, yeah, absolutely right.
Yeah. I think. I think it's the the ask twice rule. So we're all human beings.
And we can all judge when somebody's not quite themselves. So like Nick's just said, our automatic response is, Yeah, I'm fine. How are you?
But you can judge when somebody's not quite themselves. So if you ask twice. that makes the person actually think, am I? Okay?
Mark Landon: yeah, yeah. I mean truth, Kim, I think sometimes people ask the question, How are you?
And clearly they're dreading that someone might turn around. Say, actually, I'm not very good. Because, you know, I thought. Well, that's not what I was hoping to hear us just get on with my working day. I you know. And I think that's where training comes in. And obviously, these days, I tend to do a lot of training for managers and staff. And you know, I think it is giving people the confidence and the tools, and knowing where to go for help and assistance. Because, of course, actually, it may be that it's not the immediate line manager that someone feels comfortable, confiding in.
And it is having difficult conversations. It's not something that's just second nature for people. I think you do need training to as you say, can spot the visual signs, perhaps how to get someone to start to come out of that shell a bit. I mean, Nick, your thing about taking people for a cup of coffee in. By God, ages! I used to over look after the London office, and you take partners out, you know partners sort of theoretically have made it there that sort of the top of their game, and I would always say, at the start of the cup of coffee. How are you? And they would invariably say, I'm fine, and you could bet that 45 min later there were at least 2 or 3 things that were at best bugging them.
And it was actually it was much more serious than that. And I think it is, Kim. It's not asked twice, isn't it? It's just. It's also finding the time to have a meaningful conversation with someone. And I think sometimes taking them off site when you're not gonna get interrupted. Phones aren't gonna ring, and mobiles aren't gonna go off that you can give a bit of space to have a really valuable conversation.
Nick Newman: Yeah, that's a really good point. Because when when you have somebody in the middle of an open office environment asking you if you're fine, you're pretty unlikely to be saying. Actually, I'm not in front of all of your colleagues. I would have thought so everybody finding the opportunity to
Nick Newman: to ask those questions. In the right forum adopting that sort of ask twice. Approach that Kim's mentioned, and and giving people the the space to be able to to really get things off the chest if they need to, is really important. And with that, of course, it's really important for
Nick Newman: for various individuals, you know, line managers, I suppose, in particular, within many organizations, to understand what the the queues are. Make sure they're properly trained. Make sure that they they understand, perhaps.
Nick Newman: whether or not somebody's likely to be
Nick Newman: to be covered by the equality act as a disabled individual but even then, not necessarily
Nick Newman: having in that mind that that should only provide support to somebody who's likely to be covered by the equality act, of course, because it may well be that it's not necessarily technically a disability issue, that we're talking about. It's just it's simply the right thing to do to provide support to to colleagues who need it, and, if necessary, seek some external assistance in doing that as well.
Mark Landon: Yeah, yeah. Rebecca, I'm rather conscious of the count down clock. are we sort of reaching a point where we need to draw a close to things?
Rebecca Cairney: Yes, if if that's okay, oh, and if if there's anything mark that you can just highlight by way of the types of training that that we can offer, and all types of things that people could be thinking about. That would be great.
Mark Landon: Yeah, I mean, obviously, we do sort of black letter law training for managers around their legal responsibilities. Yeah, and that can be health and safety, equality, unfairness, missile, etc. But we also do soft skills, training around things like having difficult conversations. Getting people to engage working with external experts like occupational health clinicians. Because I think there's often, you know, improvement that can be made in the interaction between management and the external support.
So mental health is very much on our radar, and we're always delighted to talk to people about any sorts of training needs they may have, and just sit down with them and see if we can then put together some bespoke training package for them.
Rebecca Cairney: Okay, great. That's well, thank you all. II really really appreciate You all taking the time out to join us today, and it's been very, very interesting from my perspective and great, to do something a little bit different. And so thank you also to to all of our listeners
Rebecca Cairney: and on the theme of mental health and specifically disability discrimination. We are going to have some future employment insights podcasts which delve into disability status, and also reasonable adjustments. So please keep a lookout for those.