Mental health: making workplaces fit for work

Earlier this month, the government issued an open call for evidence for a new mental health strategy in England, emphasising the need to reach beyond the traditional realms of clinical care to support people to maintain participation in education and work. The mental health sector has welcomed this announcement, with a Mental Health UK spokesperson specifically calling for "employers [to be] properly supported to play their part". The call for evidence closes on 10 July 2026.

Given the direction of travel in this area, employers may wish to undertake a review of their own mental health policies to assess whether they remain fit for purpose in supporting mental health in their workplace. A review of this nature will likely require employers to remind themselves of the following key legal considerations that should underpin their thinking around shaping a truly supportive workplace:

• Employers must abide by their common law and statutory health and safety obligations, which includes ensuring the physical and mental health and welfare of staff.
• A mental health condition may amount to a disability under the Equality Act 2010. Where this is the case, employers must not discriminate on grounds of disability. This includes a duty to make reasonable adjustments, which can arise even if the employee has not disclosed the condition, if the employer is deemed to have constructive knowledge of the disability
• If an employer's actions contribute to or cause a mental health condition, for example through poor management style, there is a risk of claims that the working environment breaches the implied term of trust and confidence. In more serious cases, this could lead to resignations, constructive dismissal claims and/or occupational stress claims.
• A lack of support for employees' mental health can lead to higher levels of sickness absence. Added to the fact that the Employment Rights Act 2025 now provides that statutory sick pay is payable from day one (rather than day three) of an employee's absence, this has other, more hidden, costs for employers when it comes to productivity, overall organisational performance and attrition rate.

The current landscape for employers

In a recent survey of GPs, over 71% of respondents stated that they had never refused a fit note which has been requested for mental health reasons. In addition, last year, more than 965,000 fit notes cited mental health and behavioural disorders as the underlying reason for sickness, far exceeding any other condition. With sickness absence putting businesses under strain, it arguably has never been more important for employers to find ways to nurture and support people's mental health at work.

The courts are also increasingly willing to scrutinise how employers respond where workplace pressures contribute to psychological harm. In the recent case of Foxton-Duffy v Jockey Club Racecourses Ltd, the High Court awarded almost £1m in damages to an employee whose mental health deteriorated as a result of an unsustainable workload following a restructure. Despite the employer making a confidential counselling service available, they did not escape liability as a specific, serious and imminent risk had become apparent. In those circumstances, it was decided that the employer's duty of care required active intervention and the employer was deemed to have failed in this regard.

Practical tips for employers on mental health at work

Against this backdrop, there are a number of practical steps employers can take to support mental health in the workplace, whilst also mitigating the legal risks summarised above:

Review and refresh policies

Employers should ensure that mental health issues are adequately catered for within their existing policies, including with respect to managing sickness absence, performance management and flexible working processes. A standalone mental health and/or wellbeing policy can also be a useful way to signal commitment and provide clarity on available support.

Make use of occupational health and external support

As a starting point, occupational health referrals can provide valuable guidance on an employee’s fitness for work and recommended adjustments. As mentioned above, employee assistance programmes and other resources can also form part of a broader support framework, but should complement a holistic approach taken by employers.

Take a proactive approach to reasonable adjustments

Employers should not take a purely reactive approach to adjustments. For example, even where an employee has not disclosed a formal diagnosis of a mental health condition, consideration should be given to whether temporary or informal adjustments may be required to alleviate any adverse reaction, stress and/or anxiety displayed by an employee as a result of their working environment, such as proposing changes to workload, deadlines or working patterns.

Train managers effectively

Line managers are often the first point of contact for employees who are struggling and should be offered tailored training on how to support their direct reports. Training should focus on how to recognise early signs of mental ill health, how to have supportive but appropriate conversations, and when to escalate concerns. Poor handling at this stage can increase legal risks, particularly in relation to disability discrimination and constructive dismissal. Creating a culture where employees feel able to speak openly about mental health concerns can help employers intervene earlier and put support in place.

Handle absence sensitively and consistently

When managing sickness absence related to mental health, employers should balance the need to manage attendance with an empathetic and individualised approach. Rigid or overly procedural responses to issues which can be highly sensitive, on both a personal and professional level, can undermine trust and increase the risk of disputes.

Next steps for employers

Against the backdrop of employers' existing obligations and the government’s proposed mental health strategy, employers should not delay taking stock of their own approach. The current consultation signals a clear policy intent to widen responsibility for supporting mental health in the workplace. In that context, employers who take steps now to embed good practice will be better placed to respond to future developments, whilst also nurturing a more resilient workforce.

Many thanks to trainee Zoe Hare for their help in writing this article.

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

© Farrer & Co LLP, May 2026