Mental health in the workplace: is it a safety issue? – People Management Magazine

Ashurst’s Psychosocial and Psychological Risks in the Workplace Report published in November 2023 found that in the UK only a quarter (25 per cent) of respondents considered mental ill-health to be a health and safety issue, with the majority seeing it as an HR issue. This was in stark contrast to Australia, with four in five (80 per cent) respondents viewing psychosocial and psychological issues as safety concerns. 

Mental ill-health through the employment lens

When most managers in an organisation spot that an employee is potentially suffering with a mental health issue, they are trained to contact the HR team for support. This is because many of the claims arising from mental ill-health are for disability discrimination brought in the employment tribunal.

A disability is a characteristic protected by the Equality Act 2010 and includes mental impairment. The condition must have a substantial adverse effect on an employee’s day-to-day activities. In the workplace, this could include lack of focus, poor relations with colleagues, not following instructions or not keeping normal working hours. To amount to a disability the mental impairment needs to have lasted, or is likely to last, at least 12 months.

As soon as an employer becomes aware that the employee is disabled, they are under a legal obligation to make any necessary reasonable adjustments; this will usually fall to the HR team to organise. Failure to make reasonable adjustments could amount to discrimination and employees can start proceedings relatively easily and without paying a fee in the employment tribunal. Where a claim is successful, the employer faces a potentially uncapped liability for the discrimination claim.

However, an area that is often overlooked in the UK is the potential for a personal injury claim to be brought against an employer, especially with crisis ill-health situations such as self harm or taking one’s life. 

Mental ill-health through the health and safety lens

In Australia there has been significant workplace health and safety legislative and regulatory action addressing risks around mental health conditions in the workplace. This has not been replicated to the same extent in the UK. That said, UK health and safety law has included protection for employees’ physical and psychological health since the introduction of the Health and Safety at Work etc Act (50 years ago). Employers have a statutory duty of care to protect the health, safety and wellbeing of their employees. As part of discharging that duty, businesses must undertake a risk assessment, including, for example, the risk of work-related ill-health, and implement adequate control measures to reduce risks to a tolerable level. 

Until relatively recently, the UK’s HSE has tended to focus more on physical rather than psychological work-related issues. However, given that stress, depression and anxiety account for approximately half the number of cases of work-related ill-health, several HSE initiatives have been announced that show a shift in their focus. 

For example, in 2021 the HSE introduced the Working Minds campaign, with the objective of raising awareness about how to recognise and respond to the signs of stress and highlighting an employer’s legal duty to protect workers and support good mental health. In 2022, HSE published a 10-year strategy that emphasised mental health as a key strategic objective; it has also been delivering an inspection campaign aimed at reducing work-related ill-health through proactive inspection including enforcement, assurance and evaluation activity. 

HR and health and safety teams coming together

The results of the survey suggest there is a need for greater collaboration and communication between HR and health and safety teams. The areas where such an approach could be particularly effective include:

• HR input into risk assessments to identify risks and mitigation measures, and into health and safety policies and procedures;

• health and safety input into mental health and wellbeing policies, training and grievance procedures;

• employee consultations on measures to support mental ill-health in the workplace; and

• reporting to the board to ensure leadership is informed of incidents and issues.

Crowley Woodford and Eleanor Reeves are partners, and Sarah-Jane Gemmell is expertise counsel, all at Ashurst