Mental health in the workplace - will mental health first aid become mandatory?

A positive change in recent years (yes, despite the constant barrage of awfulness there have been some!) has been the growing recognition of the importance of maintaining your mental health alongside your physical health, with many employers increasingly prioritising employee wellbeing. An example of this is the number of employers focusing on mental health first aid by training up one or even a group of employees who can recognise the signs and symptoms of workplace mental health conditions and to act as a point of contact for colleagues to approach where they want to seek support. This is currently not a mandatory programme, but a recent Private Members’ Bill put forward by Tory MP Dean Russell would make it a legal requirement for businesses to offer mental health first aid training.

What exactly is mental health first aid?

Mental health first aiders are trained employees who are a point of contact for fellow employees experiencing a mental health issue or emotional distress. Mental health first aiders are trained to listen in a non-judgmental manner and guide the individual, encouraging them to access relevant support. Such employees are there to lend an ear and reduce the stigma regarding talking about mental health. Mental health first aid training also aims to raise awareness of mental health conditions in the workplace.

Farrer & Co have trained a team of mental health first aiders, building a wealth of support for employees across all teams and levels of seniority. At Farrer & Co we recognise that this initiative is not a quick fix and, therefore, it sits as part of the firm’s robust wellbeing strategy. I myself am a trained mental health first aider and found the training incredibly enlightening, not only in terms of how I can support my colleagues when they require it, but also how I can further support vulnerable senior executive clients when this is required, alongside providing my legal advice.

What would the Bill require and is it likely to be implemented?

The idea behind the First-Aid (Mental Health) Bill would be “to create parity between mental health and physical health first aid in the workplace”. In other words, in a similar way as employers are currently required to provide physical first aid training to employees in the workplace, employers would need to offer training to one or a group of employees so that they can give mental health first aid. The focus of mental health first aid does not require employers to train employees to become overnight therapists; the aim is to train the mental health first aider so that they can be a point of contact to support and be able to signpost employees to resources that can help them.

At this stage, the bill has moved to a second reading in the House of Commons. It was introduced as a Ten Minute Rule Bill and it is rare for these to become law. This is the second time Mr Russell has proposed the Bill. That is not to say it will never become law, but it does not seem to be on the immediate horizon.

Why should an employee’s mental health be a priority for an employer?

While there is no requirement for mental health first aid in the workplace, employers must take mental health into account when conducting appropriate risk assessments. Regulation 3 of the Management of Health and Safety at Work Regulations 1999 state that all employers must make a “suitable and sufficient assessment” of the risks employees are exposed to when at work. The Health and Safety Executive makes clear that this risk assessment should include workplace stress as, in their words, “work-related stress and mental health problems often go together”.

Regardless of the legal requirements, it is in an employer’s interest to recognise mental health conditions in the workplace as:

• Mental health issues such as depression and anxiety can constitute a “disability” under the Equality Act 2010. As such an employer must not discriminate against an individual for any reason arising from that disability or fail to make reasonable adjustments to mitigate any disadvantaged caused by that disability. The EHRC Code of Practice gives an example of an employee with depression being allowed to make private phone calls during the working day to an employment support scheme to support them. A failure to recognise and address an employee’s mental health condition could provide additional legal and reputational risk. These risks are explored in more detail in our previous WorkLife blog here.
• There is a financial cost for employers who fail to support employees with mental health conditions. Work-related stress is the leading cause of workplace absences and the WHO estimate that depression and anxiety cost the global economy $1 trillion each year predominantly from reduced productivity.
• Negative mental health may contribute to an employee’s decision to “quit quietly”. The precise nature of the relationship is not yet established, although some organisations have highlighted there may be positive mental health benefits for “quietly quitting employees” insofar as they feel they have regained an element of control and avoiding further workplace anxiety. You can learn more about what quiet quitting is and how to combat it in our previous WorkLife blog here.

What can employers do and what role can mental health first aiders play?

Mental health conditions can dramatically alter the lives of individuals and their families. This is complicated by the fact they can be more invisible than physical health conditions.

“People do not wear bandages to show where they have anxiety and depression. Many learn to hide their pain in fear of damaging their career. Many learn to smile, when really they would like to run a mile to escape the situation they find themselves in.”

As Mr Russell highlighted to Parliament.

Whilst in our view, mental health first aiders are an important part of a comprehensive mental health strategy, employers cannot rely on a mental health first aider scheme alone to mitigate its risks and support employee wellbeing. As employers know all too well, one scheme alone is unlikely to address broader cultural issues within an organisation that might be impacting employee wellbeing. To ensure a comprehensive mental health strategy, organisations should:

• Ensure managers are effectively trained to respond to mental ill-health in the workplace. Ensure that managers are in dialogue with HR and legal advisers on tricky issues such as reasonable adjustments for mental health or long-term sickness absence.
• Encourage employees, including senior employees, to use all of their annual leave. You should encourage a culture where, insofar as possible, employees are not disturbed during periods of leave to combat “leaveism” (for more see here).
• Remember that even if an employee is under investigation you still have a duty to safeguard their mental health (for more see here).
• It would be remiss to focus exclusively on the cure rather than prevention. Factors at work, including workloads and management styles, can detrimentally impact an employee’s wellbeing and it might be appropriate to take an organisational response even in seemingly more isolated incidents such as bullying (for more see Maria Strauss’ blog here).

You can find further practical suggestions of schemes that an employer can consider to support mental wellbeing in the workplace in our previous WorkLife blog here.

With special thanks to Alex Evans, a current paralegal in our Employment team, for his help in preparing this blog. 

If you require further information about anything covered in this blog, please contact 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, April 2023