An Employer’s Duty of Care

A recent employment tribunal ruled that a Sky engineer who breached health and safety rules and was dismissed by Sky whilst experiencing a mental health condition was discriminated against. It was found that he had been unfairly dismissed, as his mental health was, in fact, a disability. A review of the facts of this case provides valuable tips for employers managing employee mental health and the need to ensure that the potential application of the Equality Act is considered in all cases.

Employees have faced new pressures on their mental health and are looking to their employer to help. A study by Mind found that around a third of adults and young people said their mental health has gotten much worse since March 2020 – the start of the Covid-19 pandemic.  

Support

How can employers provide practical mental health support that benefits all of their employees? Here are some ideas…

Look for warning signs such as a change in the employee behaviour. For example, has there been a change in the employee's work (quality, output etc.), motivation or levels of focus? Has their mood altered?

Physical signs might include employees appearing unusually tired, anxious or withdrawn. Have they lost interest in activities and tasks they previously enjoyed? In addition, you may find they struggle to make decisions, solve problems or organise their workloads.

As an employer, it’s important to take any mental health issues among employees seriously. Consider what support employees might need in the workplace.

Remember that mental health issues are a broad spectrum and cover a wide range of conditions. Issues can occur suddenly, may be triggered by a specific event or can build up over time. Mental health issues are also indiscriminate.  Anyone can experience periods of mental ill-health during their lifetime.

More common mental health issues include depression, stress and anxiety, and less common ones include bipolar disorder and schizophrenia.

Duty of Care

Employers have a duty of care to their employees, meaning that they must do all that they reasonably can to support the health, safety and wellbeing of their employees. This includes things such as making sure the working environment is safe, carrying out risk assessments and protecting staff from discrimination.

Discrimination

Under the Equality Act 2010, a mental health issue can be considered a disability (providing all of the following apply):

• It has a 'substantial adverse effect' on the life of an employee (for example, they regularly cannot focus on a task, or it takes them longer to do)
• It lasts at least 12 months or is expected to
• It affects their ability to do their normal day-to-day activities (for example, interacting with people, following instructions or keeping to set working times) 

Even if symptoms aren’t there all the time or are better at sometimes than others, a mental health issue can still be considered a disability.  

If an employee has a disability, employers:

• must not discriminate against them because of their disability
• must make reasonable adjustments

Working with employees, even if the issue is not a disability, is good practice. Simple changes, like allowing more rest breaks and helping to better prioritise workloads, can often be enough.

Talking and Listening

An employee's mental health is a complex and sensitive issue to discuss. However, some simple actions can make the conversations easier. First, schedule a time to speak to the employee and reassure them. Then, avoid interruptions, switch off the phone and ensure colleagues cannot walk into the meeting and interrupt your conversation.

Ask simple, open questions (e.g. How are you feeling? I noticed that you seem a bit upset – is everything OK? Do you know where to get support to help you?). Ask your employee how you can help. Avoid judgemental or patronising responses and listen actively and carefully.

Minor adjustments can help support your employee through their mental health struggles.

The risks of doing nothing can be severe. Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation will normally include an award for injury to feelings and consider any loss suffered i.e. loss of wages or pension.

For example, a disabled bank worker subjected to “six years of torment” at several banking branches has received a record-breaking £4.7 million in damages.

There is also damage to your company's reputation to consider and how far that goes to discourage talent from joining your company or in increasing staff turnover.

IHRS understands the importance of having mental health and wellbeing solutions in place in any firm. We can assist you in improving employee health and wellbeing, gaining insights into staff morale, decreasing employees' stress and anxiety, and maximising take up on employee benefits.

Don't hesitate to get in touch with the team for further details. Email HRhelp@ihrsolutions.co.uk, call 01604 709509 or visit the website.