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The statistics paint a bleak picture: The Centre for Mental Health has predicted that up to 10 million people (almost 20 per cent of the population) will need mental health support as a direct consequence of COVID-19.

Employers were also already acutely aware of this issue and the impact it has on their business prior to the pandemic. The Health and Safety Executive reported that in 2018/19 stress, depression or anxiety accounted for 44 per cent of all work-related ill health cases and 54 per cent of all working days lost due to ill health. Not only does this have a huge impact on a business’s profits, but the approach to employee wellbeing can also have a knock-on impact on retention and workplace culture.

As we enter a winter of tiered lockdowns and uncertainty, it is more important than ever for employers to consider the mental wellbeing of their staff and what they can do to support them and not exacerbate any issues. Such support can range from implementing new mental health initiatives, resetting existing ones, or considering whether to tailor the existing processes which worked in a physical workplace to the current virtual working environment.

In part 1 of this focus on mental health, we focus on the potential employment risks where employees are suffering from mental health conditions or severe stress and in part 2 we provide a number of potential ways to mitigate these risks and support your workforce.

Disability discrimination

A mental health condition can, of course, be a disability for the purposes of the Equality Act 2010 and, therefore, employers will need to ensure that they abide by their obligations under the Equality Act in light of that protected characteristic.

A mental health issue will constitute a disability if it has a substantial and long term adverse effect on an individual’s ability to do normal daily activities, where “long term” means that the condition has lasted or is likely to last for 12 months or more. A “substantial” adverse effect on an individual’s ability to do normal daily activities is one that is more than a minor or trivial effect. Even if an employee is taking medication to help them manage the mental health issue, this will effectively be disregarded when considering whether they meet the definition or not.

Making reasonable adjustments

If the mental health condition does qualify as a “disability”, employers have a duty to make reasonable adjustments for that employee to reduce or remove that substantial disadvantage. This obligation applies even where the employee hasn’t specifically disclosed a mental health condition – if the red flags are there that suggest the employer ought reasonably to have known about the condition, the obligation still applies. It is, therefore, prudent for managers to make a note of any behaviour which might suggest that there may be a mental health condition, liaise with HR, and if a trend appears, consider discussing it with the employee. The Equality and Human Rights Commission Code of Practice gives an example of an employee who has depression which sometimes causes her to cry at work and the guidance states that it is likely to be reasonable for the employer to discuss with the employee whether her crying is connected to an underlying condition, and whether any adjustments could be made to assist with her working practices, which her employer could then consider.

Where we say “the employer” in the context of talking about duties to make reasonable adjustments, this obligation doesn’t only kick in when known about by the employer’s HR team – a line manager might know about it or ought to have known about it because of the employee’s behaviour and the obligation will still be triggered.

Reasonable adjustments need to be specifically tailored for that employee’s role and condition. They could include allowing the employee to work an altered working day to allow for medication, or giving them more time to complete tasks. Acas provide a list of common adjustments for staff experiencing mental ill health and it is often recommended that employers refer the employee to Occupational Health, to assist with understanding the impact of the condition on the employee’s work and what adjustments would be effective. If the employer does not make reasonable adjustments, the employee may bring a claim in the Employment Tribunal.

An area where employees often raise concerns that reasonable adjustments have not been made, or that they are being discriminated against due to something arising from their mental health issue, is where an employee’s performance suddenly decreases and the employer is considering a performance management process. An employer should consider whether there have been any red flags from a mental health perspective and consider whether capability is the real reason for the issues in question. For instance, mental ill health, stress or excessive workload could be impacting how the employee performs. If it is apparent there is a wellbeing issue, again, an employer could consider what adjustments could be made to assist the employee to perform their role at the expected standard and these should be implemented before the employee is dismissed or even given a formal warning. This is, of course, best practice in all cases where there are mental health issues involved, but, technically speaking, an employer is only required to make reasonable adjustments if the mental health condition qualifies as a “disability” for the purposes of the Act. If, for instance, an employee’s anxiety has been exacerbated by the impact of the pandemic and it means they are finding it difficult to concentrate and get their work completed on time, if an employer takes formal action or dismisses them due to poor performance and the employee could show the anxiety constitutes a “disability”, as discussed above, they may allege that the employer has failed to make reasonable adjustments and that they have been discriminated against for something arising from a disability (ie they have been dismissed because of their lack of concentration which is caused by their anxiety). In relation to the latter claim, an employer can try to argue that the dismissal was a proportionate means of achieving a legitimate aim, but it will be difficult for an employer to argue this where they haven’t tried to consider any alternatives to dismissal.

Constructive unfair dismissal

Where an employer is contributing to or causing a mental health condition, by, for instance, management style, lack of support or excessive workload, there is also a risk that employees might allege that the environment that they are in breaches the implied duty of trust and confidence between employee and employer, and resign in response to this repudiatory breach, claiming constructive unfair dismissal.

Health and safety obligations

When considering how an employer should approach employee wellbeing, employers must, of course, abide by their common law and statutory health and safety obligations. All employers have a common law obligation to take reasonable care for the safety of their employees, and also have obligations under the Health and Safety at Work etc Act 1974, which imposes the general duty on employers to ensure the health, safety and welfare of staff, so far as is reasonably practicable. This duty includes ensuring the mental health and welfare of staff.

Mental wellbeing should be factored into health and safety risk assessments in the usual manner. HSE also recommends that psychosocial risks are assessed when risk assessing your workplace to ensure it is “COVID secure” and employers with over 50 employees are expected to publish the outcome of the risk assessment on your website.

To assist employers when considering their risks, the Health and Safety Executive has developed the “Management Standards” approach to managing the risks to employees from work-related stress. The standards cover six key areas of work design (demands, control, support, relationships, role and change) that when poorly managed are associated with poor health, lower productivity and increased accident/sickness absence rates. There is a helpful workbook which also provides tips and guidance and checklists to help employers implement this.

This blog has focused on the employment risks which may arise where employees are suffering from mental health conditions or severe stress. The obvious question arising out of this is – what can employers do about it? We will address this in detail in a second blog on mental health next week (now published here).

If you require further information about anything covered in this blog, please contact Alice Yandle, Hannah Taylor, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2020

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