This article was first published in Employment Law Journal
In 2006, it was estimated that 35% of all GP consultations involved a mental health problem and by 2011 stress had become the most common cause of long-term sickness absence for both manual and non-manual workers. If these figures are not reason enough for employers to address their employees’ mental health issues, there are plenty more statistics that may convince them:
- It is estimated that three in ten people will experience a mental health problem in any one year, and this figure is likely to increase.
- Work-related stress costs Britain 10.4 million working days per annum, with a disconcerting 91 million days per year lost to mental health problems generally.
- The Centre for Mental Health estimates that the total cost of mental health problems at work is over £30 billion a year.
- When working long hours, more than a quarter of employees feel depressed (27%), one third feel anxious (34%) and more than half feel irritable (58%).
Although employees as well as their employers need to take action to reduce stress and other mental health conditions, it is no surprise that while an employee may feel comfortable telling a colleague or boss that they have a physical injury, they are far less likely to be open about a mental illness. This means that prudent employers should proactively seek to address any concerns they may have, even though they may be as nervous about raising the issue as the employee. The likelihood of an employee returning to work falls as the period of illness increases: for example, someone who has been off sick for six months or longer has an 80% chance of being off work for five years. So there are clearly both organisational and financial incentives for employers to spot the signs early and manage the situation.
What is a mental health problem?
Very grave misconceptions about what constitutes a mental health condition still persist, as does the stigma attached to mental illness. While legislation like the Mental Health (Discrimination) Act 2013 goes some way towards the aim of reducing negative perceptions associated with mental illness (albeit at a policy level), actually knowing what is and is not a mental illness is an important primary building block. Thankfully, references to "lunacy" and other such evocative and unhelpful terms have not featured in legislative nomenclature since the coming into force of the Mental Health Act 1959, although nowhere in legislation will employers or employment law practitioners be able to find a list of mental health conditions.
Mental health conditions can vary greatly in their severity and can be caused by a single life event or develop gradually over a period of time. It is therefore important not to make an unqualified judgement or assumption about how an employee’s condition may develop. Against that background, a defined list of mental health conditions is probably unhelpful to employers and employees and its absence from legislation appears to be no accident.
Acas does provide a table of such conditions in its guidance, Promoting positive mental health at work (see box on pxx). However, while it may be useful to have a basic understanding of these conditions, the important thing for employers is to put policies in place and create an environment that helps to avoid a worsening or prolongation of mental ill health, whatever the exact condition is. Quite apart from the organisational and efficiency benefits of properly dealing with such conditions, employers face legal obligations not to discriminate against an employee who is disabled by reason of their mental health condition.
Under the Equality Act 2010, a person is considered disabled if they have "a physical or mental impairment" which has "a substantial and long-term adverse effect" on their ability to carry out normal day-to-day activities. As Appendix 1 to the Equality and Human Rights Commission’s Code of practice on employment, which deals with the definition of "disability" for the purposes of the Act, makes clear:
The term "mental impairment" is intended to cover a wide range of impairments relating to mental functioning.
Actions for employers
It is important for employers to do what they can to avoid an employee going off sick because of a mental health condition, especially as this often leads on to long-term absence (see below). The focus is often on trying to avoid work-related stress but according to the Mindful Employer website, non-work-related stress, anxiety and depression actually cause more absence than work-related difficulties. Most people will experience a bereavement, relationship breakdown or financial concerns at some point in their working life, for example.
Regardless of the origin of mental health problems, the workplace can still be a significant factor in how they evolve or are resolved, and employers stand to benefit from positively addressing the following aspects.
Employees and managers at all levels of the organisation should be informed about the extent to which mental health conditions can affect them. To raise awareness of the issue, training sessions can be held or a policy created, distributed and discussed. By taking this approach, an employer is more likely to ensure that managers and employees alike feel able to talk about their concerns.
Look out for symptoms
Even with training and policies in place, employees may still feel unable to discuss how they are feeling. An effective capability management system ought to identify problems, but Acas recommends also looking out more regularly for common symptoms such as poor performance, poor decision-making, lack of energy, uncommunicative or moody behaviour and an increase in unexplained absences or sick leave.
Some employees may temporarily experience some form of mental health condition as a result of a significant life event. Others, however, may have conditions that develop over, or last for, many years. Only by recording their observations can managers appraise themselves of changes in an employee’s behaviour and offer appropriate assistance when needed. This is particularly important where there is a high, or relatively high, turnover of line managers.
Given that mental health problems are often still considered a taboo subject, training is necessary to enable managers to provide support and to respond appropriately. There is a risk, however, that once trained, managers will try and diagnose or label the employee’s condition themselves, and this needs to be discouraged. Any training should therefore include guidance on how to use the information properly given the sensitive nature of the condition that the employee may be experiencing.
Encourage open but confidential dialogue
Where managers have concerns, they should be encouraged to have an informal conversation with an employee if the individual does not ask for help in the first instance. This should be in non-leading terms – for example asking, "How do you feel?" rather than saying, "You seem depressed". Managers must also choose a location and time that respects the sensitive nature of such a discussion. If there is a problem, they should then schedule another meeting for an appropriate point in the future because mental health conditions will not spontaneously resolve over a very short period of time.
Provide access to support
Both at meetings with their manager and in the workplace generally, the employee should be informed about how to access support or about what support can be put in place if needed (such as referral to a counsellor). The employee may still feel unable to discuss their mental health condition with other people and this should be borne in mind when explaining to them what help is available.
Since mental health conditions span an entire spectrum ranging from worries and grief to suicidal intentions, it is important for employers to appraise themselves properly of the reason for the absence beyond the often bald statement provided by a GP. They should, however, be careful to avoid pressuring the employee into revealing more about their condition than they feel comfortable with.
Normal reporting procedures should be used in the first instance but the employer needs to adapt to the particular situation by exploring other methods of information gathering. These might include involving an occupational health specialist or perhaps corresponding in writing if the employee is unable to cope with telephone or face-to-face contact.
A protracted period of sickness can have a detrimental effect on an employee’s confidence, motivation and sense of identity, as well as setting them on a downward spiral of ever-diminishing prospects of a return to work. There has therefore been a move away from lengthy sick leave towards a more optimistic plan of work-based recovery for many mental health conditions. This means that employers should ensure managers and colleagues are properly trained in order to facilitate the employee’s successful return to work, which may include a phased or full return with duties adapted as appropriate.
Quite apart from best practice, there may of course be legal obligations on the employer if an employee with a mental health condition is classified as disabled under s6 of the Equality Act. Given the re-inclusion of a reference to recurring disorders in Sch 1 para 2(2) of the Act, employers and their advisers should err on the side of caution and assume that the employee is protected. They should also now be more wary about relying on the defence of a lack of knowledge of disability since the decision in Gallop v Newport City Council  EWCA Civ 1583. In that case, the Court of Appeal said that a mere belief by the employer that the employee is not disabled (based, for example, on the opinion of its occupational health adviser) is insufficient. Employers should therefore actively look at adjustments which they can make to facilitate a return to work, which may include the removal of stressors identified by the employee, where reasonable.
It is a welcome development that such a serious category of illness is now starting to be properly addressed from the legislature downwards. The spiralling cost of mental health conditions in the workplace has doubtless had something to do with this but at least the issue is now being taken seriously. With such a significant proportion of sickness absences arising from mental health conditions, it is clear that for employers to do nothing is unwise in many ways – not least economically.
|Mental Health Conditions||Not Mental Health Conditions|
|Bipolar disorder||ME/Chronic fatigue|
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