The right to mental health in the workplace

One in five adults have experienced mental health issues in Northern Ireland, a rate 25% higher than in England. A report published by the Audit Office this year further revealed that Northern Ireland, whilst having the greatest need for mental health services in the UK, receives the lowest level of funding to tackle the issue. This invariably results in increased rates of sickness absence in Northern Irish workplaces.

In-keeping with this year’s official theme for World Mental Health Day – “Mental health is a universal human right” – it is useful to remind employers of the rights of employees in terms of their mental health and wellbeing and how this can be best supported in the workplace.

What does the law say?

Mental health is defined by the World Health Organisation as, “a state of well-being in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.”

There are a number of legislative provisions which are designed to protect mental health in the workplace. Primarily, the Health and Safety at Work (NI) Order 1978 places a duty on employers to ensure the health, safety and welfare of their employees at work. This extends to employees’ mental as well as physical well-being. The Management of Health and Safety at Work Regulations (NI) 2000 place a further duty on employers to assess risks to health, which involves minimising the risk of stress-related illness or injury.

Where an employee falls under the statutory definition of ‘disabled’ as a result of their mental health condition, they will also be protected under the Disability Discrimination Act 1995 (DDA) and their employer will have to make reasonable adjustments to the workplace and/or their role to avoid the employee being placed at a disadvantage when compared to non-disabled employees. It is important to note that, following changes implemented by the Disability Discrimination (NI) Order 2006, mental illness no longer has to be a clinically well-recognised condition to be covered by the DDA.

Another layer of protection is afforded to employees under civil law, where a failure to protect the mental health of an employee could result in a negligence claim. It has long been established at common law that employers owe a duty of care to provide a safe place and system of work, which includes eliminating or controlling risks to employees’ mental health.

Good mental health = good for business

According to recent figures released by the Office for National Statistics, record levels of employees in the UK are inactive because of long-term sickness absence. It is therefore in an employer’s best interest to promote employee mental health and well-being, given the huge financial pressure that high levels of sickness absence (and subsequently, staff turnover) can place on a business.

Taking positive steps to support mental health in the workplace can also reduce an employer’s risk of encountering claims in respect of:

  • Discrimination: A claim for discrimination could arise where the employee is treated less favourably than someone else on the grounds of their disability or where there is a failure to make reasonable adjustments
  • Constructive unfair dismissal: where the employer breaches the implied duty of trust and confidence by contributing to or causing a mental health condition
  • Unfair dismissal: where there is no fair reason to dismiss and/or the employer fails to follow a fair procedure in respect of an employee who is considered disabled for the purposes of the DDA
  • Breach of statutory health and safety obligations in failing to ensure the mental welfare of employees or failing to assess and control the risk of stress-related ill health arising from work activities
  • Negligence or breach of the common law duty of care towards employees to provide a safe place and system of work

Practical steps for employers

With NHS waiting times at an all-time high, it has never been more vital that employers provide their workforce with mental health support. Some practical steps which can be easily implemented include:

  • Drafting a dedicated mental health policy within which wellbeing materials and information are clearly signposted and the employer’s values and approach to mental health are clearly set out
  • Regularly rolling out mental health training to managers so that they are well equipped to identify issues and support employees
  • Demonstrating good practice by undertaking a risk assessment to protect employees from stress at work
  • Appointing a mental health first aider (a member of the workforce who is trained to recognise the signs and symptoms of mental ill-health and can provide colleagues with the appropriate support)
  • Creating a supportive environment where employees feel encouraged to talk openly about their mental health and raise their concerns
  • Where appropriate, making reasonable adjustments for employees suffering from mental ill-health. This could include adopting a more flexible working arrangement, altering the employee’s role or responsibilities or making changes to the employee’s physical work environment or equipment.

Conclusion

Whilst World Mental Health Day is a good opportunity to remind ourselves of the importance of good mental health practices, approximately one in four people in the UK will experience a mental health problem each year, therefore supporting each other’s mental health and wellbeing must remain a priority all year round.

By applying the recommendations set out above, employers can not only create a healthy work environment which foster’s productivity and employee engagement, but they will also reap the financial benefits of avoiding litigation and increased levels of sickness absence.

For more information please contact Aisling Byrne, Partner or your usual Employment team contact.

Date published: 9 October 2023.