Mental health: Key issues for HR and line managers
This week (8-14 May) is Mental Health Awareness Week and it is receiving a great deal of publicity. We therefore thought it a good time to look at the issue of mental health from an HR perspective.
Why should mental health be such an important issue to organisations?
The bottom line is that a healthy workforce will build a successful organisation.
We all have physical health and mental health. The workplace, and society generally, is becoming much more open when speaking about mental health. Ensuring that employees’ mental health is in a good place has a positive impact on a wide range of HR issues and the success of organisations.
If an individual’s mental health is not at an optimum level then it will inevitably impact on the workplace through:
- a reduction in productivity or performance
- inappropriate behaviour
- lost working days through sickness absence
- increased turnover of staff
Managing mental health in the workplace can be challenging and the issues around it are complex so it is important that employers are aware of their legal obligations and the issues that arise.
Many employees feel uncomfortable in revealing that they are experiencing poor mental health. From our own files we know that many staff feel unable to disclose to their organisation if their mental health is below par and it’s not unusual for false reasons for absence to be given to conceal the true reason for absence.
Whilst there is a definite trend towards more openness about mental health there is still more that can be done to ensure that individuals and therefore organisations go from ‘survive to thrive’ (which is the theme for Mental Health Awareness Week).
What are the legal issues surrounding mental health?
Mental health in the workplace involves a variety of complex legal issues and it is important that organisations are aware of these to minimise risk and to ensure that they have workforces that are fully thriving and thus contributing to their success.
- Health and Safety: a statutory obligation is imposed on organisations to provide a safe system of work. This legal obligation extends to all staff who work for you (including those in the gig economy and on atypical contracts). So, if there is a culture of bullying then an organisation must take steps to ensure it is does not breach the law and face fines.
- Disability discrimination: mental health issues may amount to a disability. It will depend on each case. However, it is important that all managers are aware of this to ensure that if the condition is a disability the organisation is complying with its obligations to make reasonable adjustments and that decisions are not taken, for example, about poor performance or inappropriate behaviour, that may give rise to a legal claim.
- Personal injury claims: an organisation could be exposed to a claim in personal injury if it fails to address matters once it is aware that an individual is becoming unwell as a result and does nothing about it. The common example cited is an overworked individual who keeps on taking on work and the organisation fails to take action. A failure to address issues is not the answer – take advice quickly.
What can an organisation do to limit legal risk surrounding mental health?
Positive and supportive action early on will help minimise risk and ensure the workforce (and therefore the organisation) thrive.
Practical steps that should be considered include:
- Policies and procedures: make sure there are policies and procedures in place that deal with mental health.
- Training: As experienced employment lawyers, we know that policies and procedures are often in place but managers rarely read them or know the content in sufficient detail. It is vital that managers or those with responsibility for staff are aware of the content of the policies the organisation has in place. A good training course will help with this.
- Return to work interviews: these should be carried out after every absence (irrespective of the reason, whether physical or mental health). Research has shown that ensuring a return to work interview takes place after every absence has a significant impact on absence levels. Crucially, for the purpose of mental health, it can also help detect if there are further risk management steps that can be taken.
- Support: many individuals feel apprehensive and worried about raising concerns about their mental health. An organisation with a culture of openness and support will mean that it is easier for the individual to do so. This can be in the form of:
- raising the issue at each appraisal (through appropriate questioning)
- correct support and contact during any absence
- correct monitoring on return to work
- senior management and all personnel talking about mental health as they do physical health
These are just some of the recommendations we suggest to limit the risk of mental health issues in an organisation. There are others and the above can be expanded on in much more detail.
How we can help
There is a definite trend in mental health issues in the workplace. Organisations need to be fully aware of their obligations and how to minimise the risks that can arise if a mental health issue arises.
Our experienced solicitors can provide audits of policies and procedures, train staff, support HR and managers, and ensure that the organisation is dealing with mental health issues in the workplace in a legally compliant way. We can help to limit the potential for claims which can be very expensive and create significant reputational damage. An audit of policies and training, for example, can be a cost-effective way of ensuring an organisation is fully up-to-date in this complex area of the law.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.