DLA Piper's Jane Hannon says the post-Covid workplace provides new challenges when it comes to addressing employee mental health.
An important feature of the Covid-19 pandemic has been the spotlight that it has shone on the issue of mental health. It is now widely recognised that the adverse impact on mental health of the virus and the measures put in place to tackle it will be felt across the world for a significant time to come. Some experts have gone as far as to warn of a "second pandemic" of mental illness.
Poor employee mental health risks myriad adverse consequences in the workplace. It can impact on productivity, work quality and employee commitment. It can also cause increased absence levels and staff turnover, and may expose businesses to legal risk.
In terms of regulation relevant to the management of employee mental health, employers need to be aware not only of their duties to protect employee wellbeing, but also of the laws which permit an employee to take legal action where, for example, the employer has treated them unfairly because of their mental ill-health or has been responsible for them suffering workplace stress.
Health and safety legislation is one aspect of regulation which imposes a positive obligation by requiring businesses to tackle workplace hazards including work-related stress. Employers have a legal duty to assess the risk of stress-related ill-health arising from work activities and to take measures to control that risk. The Health and Safety Executive (HSE) is able to take enforcement action where these obligations are breached.
To comply with health and safety obligations, an organisation must carry out a suitable and sufficient risk assessment for work-related stress and take action to tackle any problems identified. The purpose of the risk assessment is to find out whether existing control measures prevent harm or if more should be done.
The HSE have published a set of managements standards on work-related stress and while employers do not have to adopt these, doing so will demonstrate that the business has met its legal duties. If the management standards approach is not used, a suitable equivalent approach is required.
Disability discrimination laws also form a significant feature of the legal landscape on mental health at work. Legislation requires an employer to make reasonable adjustments to facilitate an employee with a mental impairment remaining in or returning to the workplace - so where someone is suffering from work-related stress, their employer might have to consider, for example, transferring some of the individual's duties to another worker or providing mentoring or training to support them in their role.
As well as claims in relation to reasonable adjustments, disability laws also provide recourse where an employer discriminates or harasses someone on grounds of disability. Claims of this type are often pursued together with unfair dismissal claims, such as where someone is dismissed for poor performance because of absence all caused by mental ill-health.
A disability discrimination claim might also be tied up with a claim for constructive dismissal - for example, where lack of support from the employer, perhaps in response to bullying or harassment allegations or complaints about overwork, creates an intolerable position resulting in the employee resigning.
Where bullying or harassment experienced at work causes an individual to suffer from work related stress, the business also risks claims for psychiatric injury or under the Protection from Harassment legislation. Although claims of this type are more difficult and expensive for an individual to pursue, where they succeed the compensation awarded can be significant, and the reputational damage high.
Workplace wellbeing support
Although employer intervention cannot entirely remove the negative impact of poor mental health, there is nonetheless a strong business case for action. As well as increased productivity, improved work quality and better employee engagement, insight into current employer schemes shows the return on investment in workplace mental health programmes is overwhelmingly positive - returning about £4.20 for every £1 spent.
Some employers who had already recognised their obligations to provide support to staff and the business benefits of doing so have refreshed their wellbeing programmes to make them fit for the challenges of Covid-19. Others have expedited future plans for implementation of programmes and some are now looking at the issues for the first time.
Our recommendation for business is clear: workplace wellbeing programmes are not just the right thing to do; they are smart and responsible business.
Jane Hannon is employment partner at DLA Piper