Recently, the Prime Minister unveiled plans to transform mental health support in the workplace – the latest public recognition of the rising tide of employees suffering from mental health and stress at work issues. We do not yet know whether this latest initiative will actually help, but it is really important that employers don’t just focus on how to manage employees once they become ill but also what is behind their mental health issues and how they may prevent them arising.
Employers focus tends to be on potential disability discrimination issues – given that there is no requirement for employees to have two years’ service, and there is no cap on compensation if a disability discrimination claim is successful, this is understandable.
Furthermore, disability claims tend to focus upon how the employer dealt with the employee after they became unwell, considering questions such as have reasonable adjustments been made? Has there been unfavourable treatment because of something arising in consequence of disability? Has there been less favourable treatment because of disability?
Although it is important that employers keep these questions in mind when considering how to manage mental health and stress at work issues, too often insufficient attention is given to the reason why an employee may have fallen ill in the first place.
Duty of care
Legally, all employers have a duty of care to avoid causing “psychiatric injury” to their employees. Just as an employer can be held liable for causing physical injuries through unsafe working conditions, so too can liability arise for personal injury, as a result of causing an employee to sustain psychiatric injury.
Occupational stressors can be a key factor in causing an employee to develop a mental health issue, or in exacerbating an existing condition, such as:
• intense work pressure,
• excessive working hours,
• difficult working conditions, such as being subject to bullying,
• unreasonable performance/disciplinary management process,
• during periods of economic uncertainty, even robust employees can be at risk.
And it is not just mental health that is at risk in these situations, as being subjected to high levels of stress can also give rise to physiological disorders, such as a higher risk of heart attack.
Laying the blame
As the link between work and mental illness continues to gain even greater public recognition, there is also a growing trend of employees seeking to blame their employer for breaching the duty of care to avoid causing them psychiatric injury.
To succeed in a claim an employee would have to prove that the injury was reasonably foreseeable. For example, the court would ask – would a reasonable employer have foreseen that the employee was at risk of developing a psychiatric illness because of work-related factors?
What should employers do?
Here are some tips:
• Adopt a company-wide approach to promoting the wellbeing of your staff – make sure you have a stress policy in your handbook and ensure everyone knows it is there and be familiar with its content.
• Make sure line managers are aware of the Health & Safety Executive Management Standards which cover the key areas of work that, if not properly managed, are associated with poor health, lower productivity and increased accident and sickness absence rates :
o Demands – this includes issues such as workload, work patterns and the work environment
o Control – how much say the person has in the way they do their work
o Support – this includes the encouragement, sponsorship and resources provided by the organisation, line management and colleagues
o Relationships – this includes promoting positive working to avoid conflict and dealing with unacceptable behaviour
o Role – whether people understand their role within the organisation and whether the organisation ensures that they do not have conflicting roles
o Change – how organisational change (large or small) is managed and communicated in the organisation.
• Make sure line managers receive education and training on mental health so that they have the confidence to respond and know what to do if an employee asks for help.
• Establish preventative measures, such as return-to-work and exit interview programmes.
• Look out for trends in illness and sickness absence within your workforce. These may identify high risk managers and departments, and you can then take appropriate measures to address any issues.
• Ensure that a manager is accountable for being in contact with an employee who is developing a mental health issue at work. Touch base with them regularly, in an appropriate manner, as this can have a positive impact and reduce the scope for an individual to become embittered and more likely to bring a claim.
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