Each year tends to see certain issues coming to the fore more for employers. 2018 was undeniably the year of #metoo and whilst that has continued into 2019 (and will continue into 2020 and beyond) other issues also came more into focus for employers in 2019.
The UK headlines (in employment law circles at least) centered around the first Supreme Court case in a century to look at interpretation of post termination restrictive covenants (Tillman v Egon Zehnder in the Supreme Court), whether gender critical beliefs can be protected by the Equality Act 2010 (the tribunal held no, in that case), whether veganism is a belief capable of protection under the Equality Act 2010 (the decision today is yes, it can be). However, throughout the whole year, a topic discussed at length by lawyers, employers, employees, doctors, charities and the media was the prevalence of mental health in the workplace.
It was one of the most wide-reaching workplace issues of 2019. I was asked to speak on the topic numerous times, on both sides of the Atlantic. This was consistent with a rise in awareness of mental health issues throughout society and also of the sometimes catastrophic impact that our working lives, 24/7 connectivity and workplace stress, can have on our mental well-being.
The increase and impact of mental health in the workplace
Historically there was a fear of admitting and talking about mental health in the workplace. As a result, the issues were often not discussed and addressed by employers, and employees. Whilst there has been significant progress, a large number of awareness campaigns, including high profile campaigns and resources by the Duke of Cambridge and the Royal Foundation, and more acceptance about mental health issues, it remains an issue with which many employers are unfamiliar and inexperienced. It is, however, one which is having a massive, and growing impact on employees. In some sectors there are cultural issues which are likely to exacerbate the problems, or make it harder to openly discuss mental well-being. In particular, high pressure environments, or night shift work for example, can contribute to mental health issues. My own sector, the legal sector, with its highly pressurized and competitive environment where there is a long hours and heavy workload culture, can significantly affect mental well-being, but also the willingness of employees and business owners to discuss it openly.
For employers, there are multiple issues. They must consider the related legal issues, environmental and cultural factors, and whether the support they have in place, if any, is adequate. Not only do employers need to think about this from a well-being perspective, but it is a financial issue too. Mental health issues at work cost businesses money. Absences and low productivity have an economic impact on business and the wider economy. Beyond the financial, mental health issues in some cases can lead to an increased likelihood of other problems (e.g. alcohol or drug consumption and dependency) which in turn can lead to other issues for employers, such as behavior to which alcohol consumption has contributed, like sexual harassment, violence, fighting and the knock on issues caused by such behaviors on others in the workplace.
Research shows that employees of professional services firms are considerably more likely to report experiencing poor mental health symptoms related to work than non-professional services with 67% reporting that they have experienced symptoms of poor mental health related to work. This is despite the fact that prevalence of diagnosed mental health conditions is the consistent with the workforce as a whole (at 33%) based on a report by Prince’s Responsible Business Network (Mental Health at Work 2018 Report: Seizing the Momentum). That report also found that managers in professional services firms are less likely than managers in other sectors to have confidence in their own ability to identify poor mental health symptoms. Further findings of that report show a trend in the financial services sector is for employees to have much more access to employee assistance programmes and other tools to cope, ascribed to the fact that 61% work in organizations with over 1,000 employees. The report finds that younger workers (those under 30) compared to older workers were less comfortable talking about mental health at work (45% v 57%), less comfortable talking to their managers about a mental health issue (40% v 48%), and also younger managers didn’t consider they had enough support to help colleagues (29% v 19%). It also found that 24% of men will involve work or use a work provided service in relation to a mental health issue compared with 35% of women and that more generally, 38% of men sought no support vs 23% women.
What can cause or contribute to mental health issues at work
There are multiple causes of mental health problems, including workplace issues, personal issues, medical issues and addiction. From a legal perspective a key question is whether the health issue was caused or exacerbated by work. If so, then the employer may have some liability to the employee for any psychiatric injury suffered, or to the family in cases of suicide.
Some common workplace practices can impact mental well-being including:
· Home working – despite some benefits consideration need to be given to the fact that remote workers may feel forgotten, undervalued and unsupported when away from the office.
· Employees subject to investigation and disciplinary processes – this places a huge stress on employees and steps should be taken to mitigate so far as possible – this could include: regular updates, provision of a “buddy” from the organisation so they have someone to talk to freely, provision of counselling and medical support if appropriate, completing processes as quickly as possible.
· Use of technology/always contactable – employers should consider the increased expectations on employees for responding to communications and being “on” 24/7 and what can be done to help employees and prevent this culture becoming overwhelming.
· Hot-desking – studies show that some employees find this stressful, both the stress of finding a desk each day but also the lack of familiarity with their surroundings.
The legal risks
They legal risks fall broadly into three categories: personal injury claims; disability discrimination claims and health and safety issues. All three can cause problems for employers in terms of cost, adverse publicity and potential enforcement action.
Employers must be aware that any employee suffering from a mental health issue in the workplace, howsoever caused, may be protected in the UK by the Equality Act 2010 under the disability discrimination protections. They will be so protected if their mental health condition is a disability, meaning that it physical or mental impairment which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. That means that they cannot be treated less favorably than a non-disabled person because of their disability; they cannot be treated unfavorably (that is in a detrimental way) because of something which arises from their disability, for example, because of absences or behavior; they cannot be indirectly discriminated against because of their disability (i.e. a policy can’t be applied which adversely affects disabled employees compared with non-disabled employees) and finally; the employer has a duty to make reasonable adjustments (similar to reasonable accommodations in the US) for disabled employees. Such adjustments may be altered working hours, support for the employee or different equipment to help them to perform their role.
Strategies to help
Greater awareness, and implementation of policies relating to the issue will help. Further, as awareness grows, and as employees become more comfortable discussing mental health issues, employers will likely start to provide more support for employees. The lack of early identification and support (whether or not the employer’s responsibility) is often the issue. The silence and stigma is without doubt a contributing factor.
No one size fits all and each case should be treated individually. People will have their own struggles, their own triggers and stressors, their own coping mechanisms. A reasonable adjustment that works for one person may not work at all for another. The employer’s aim should be to make adjustments in order to allow the employee to perform their duties without being disadvantaged, and therefore the employer should be willing to listen and be accommodating, to the extent possible, having regard to the needs of the business. When considering adjustments for specific employees, medical advice should be sought and the proposals and suggestions discussed with the employee. Some strategies employers might consider more generally include awareness raising and de-stigmatizing; promoting and providing training in mindfulness techniques; increased training on the topic more generally; training employees to become mental health first-aiders and carrying out stress at work audits and risk assessments (there is an example here on the Health and Safety Executive website).
There are huge challenges ahead for employers, with technology being relied upon more and more across all sectors, and employees being more accessible than ever, often without a fixed place of work each day, and outside work stresses such as money and family worries, the pressure on mental health seems greater than ever. Employers will have to be hyper-vigilant to spot issues, identify possible causes and put in place necessary support both to protect the employees, but also protect their business from the adverse social and economic effects of mental health issues in the workforce.