‘Hidden Injustice’ says Theresa May
On 9 January 2017, Prime Minister Theresa May announced plans to increase the support and resources available to employees suffering mental ill-health. She called mental health a “hidden injustice in our country” and referred to the unacceptable stigma surrounding it, claiming that it had been “dangerously disregarded as a secondary issue to physical health”.
She said that more should be done to assist mental well-being in the workplace. The government also plans to review employment discrimination laws to ensure that employees with mental health problems receive adequate support.
So why the focus on mental health in the workplace? It’s clear that mental health problems cause significant issues for employers, especially in relation to employee absence. According to the Health and Safety Executive, stress is a leading cause of employee absence. It accounts for 37% of all work related ill health cases and 45% of all working days lost to ill health (see the HSE’s Work Related Stress, Anxiety and Depression Statistics in Great Britain 2016). The HSE defines stress as the “adverse reaction people have to excessive pressures or other types of demand placed on them”.
The CIPD’s Annual Survey on Absence Management 2016 has some interesting points to make about stress in the workplace. The survey states that stress is the most common cause of long-term absence and the second most common cause of short-term absence after minor illness. It also claims that a third of those employers who include stress among their top five causes of absence are not taking any steps to address it.
Another recent study estimates that the annual cost of mental ill health to UK employers is £26 billion, through lost working days, turnover and low productivity. The HSE suggests that the main factors which cause work related stress, depression or anxiety are workload pressure, including tight deadlines and too much responsibility, as well as a lack of managerial support.
Stress – the problems for employers
Stress is recognised as one of the main causes of absenteeism, but it can also impact employee productivity and motivation. And some stress is, of course, non-work related including relationship or financial issues. However, where stress arises from the workplace, it can lead to expensive litigation against the employer.
Employer liability can present in various ways including:
- Breach of health and safety legislation
- Breach of Working Time Regulations 1998. A recent EAT case (Grange v Abellio London) showed that failing to proactively ensure that employees take rest breaks will be a breach of the Regulations. It is not enough to assume that employees will take breaks if they want them
- Disability Discrimination (see below)
- Breach of common law duties to take reasonable care of the health and safety of employees in the workplace. This can lead to expensive personal injury civil litigation if it is reasonably foreseeable that the employer’s conduct would damage the employee’s health. For example, requiring the employee to work excessive hours or failing to help manage workloads.
However, employers are entitled to assume that an employee can cope with the “normal pressures” of the job unless they are made aware (or should be aware) that they cannot
- Unfair dismissal and breach of contract – failing to handle stress can constitute a breach of implied contractual terms and lead to claims of unfair dismissal and/or breach of contract.
Stress is not a disability
Treading carefully will help employers to avoid falling foul of disability discrimination when dealing with employees suffering stress. However, the recent EAT case of Herry v Dudley MBC reminded us that stress on its own is not a disability under the Equality Act 2010.
There is, of course, always a risk that GPs or other medical practitioners will use the word “stress” interchangeably with “anxiety” or “depression”, both of which may count as disabilities. If an employee is signed off with “stress”, it makes sense for the employer to investigate whether there is an underlying mental health condition that will trigger obligations in respect of disability discrimination, such as a duty to make reasonable adjustments.
For example, where an employee facing a disciplinary investigation takes sick leave on the grounds of stress, it’s worth reflecting whether there is any additional risk posed before continuing with the process.
Rather than applying policies in a blanket fashion, careful consideration of each case, with additional medical evidence sought if necessary, will help employers minimise the risk of costly claims.
Top tips for helping to reduce stress in the workplace
As Theresa May noted in her speech, “mental well-being doesn’t just improve the health of employees, it improves their motivation, reduces their absence and drives better productivity too”.
While it’s not clear what form the additional support envisaged by the Prime Minister is likely to take, it is certainly in employers’ best interests to do what they can to protect their employees’ mental health.
The following steps could help:
- Put in place a stress at work policy setting out how employees should raise concerns and ensure that staff know they can seek assistance safely and in confidence
- Carry out risk assessments/stress audits considering the risk of employees developing stress-related illnesses
- Ensure workloads are monitored effectively by managers
- Train managers to handle stress and to understand their role in situations involving mental health
- Deal effectively with any bullying or harassment through appropriate management and HR policies
- Identify any underlying stress-related reason for absence or poor performance through performance appraisals and return to work interviews
- Actively encourage rest breaks – not only will this potentially help with mental well-being, it ensures compliance with the Working Time Regulations 1998
- If possible, offer flexible working options
- Train staff to recognise and cope with stress and/or provide confidential stress helplines
- Improve well-being – benefits to employees such as access to counselling services, employee assistance programmes and free health and lifestyle screenings demonstrate commitment to promoting employees’ health
- Providing benefits such as cheap gym membership or arranging social activities for staff (trips to the theatre, etc.) may also promote well-being and a work-life balance.
While these steps are unlikely to completely eradicate stress in the workplace, they can help with keeping stress and dissatisfaction to a minimum.
The potential benefits?
Improved overall attendance, performance and efficiency, as well as a reduced risk of costly litigation.