The definition of mental health as “a person’s condition with regard to their psychological and emotional well-being” isn’t suggestive of a negative state. Yet the stigma surrounding it is one of weakness and indignity. Conversely, supporting those with physical impairments has for decades required employers to provide adequate and appropriate equipment, facilities and personnel to ensure that employees receive immediate attention if they are injured or taken ill at work.
The word “personnel” is key here. Most businesses have first aiders who are trained to administer basic first aid for physical injuries. Far rarer is the presence of staff trained to deliver first aid for mental health conditions. This is an area where we’ve barely started to tackle the challenges that exist in almost every workplace in the country.
The impact of inadequately addressing mental health concerns is clear. In Flemming v East of England Ambulance Services NHS Trust ET/3400184/2016, Mr Flemming raised concerns to HR that internal bullying had led him to suffer a “severe and crippling mental illness” and to feel suicidal. The HR advisor simply responded: “I appreciate you may have mental health problems, but this letter is not acceptable”.
In the ensuing claim, the employment tribunal commented that they had “never before seen such an appalling response”. Mr Flemming eventually resigned and brought a number of successful claims relating to his disability.
Could adequate mental health training have helped in this case?
- One in four people suffer with mental health conditions every year, yet 75% receive no treatment.
- The annual impact to the economy is estimated to exceed £100 billion.
- Every year it costs business £1,300 for each employee whose mental health needs are unsupported.
- 84% of UK line managers believe they are responsible for employee well-being, but only 24% have received training.
Depression is the leading cause of disability globally, according to the World Health Organisation. Interestingly, the law governing disability in the UK, the Equality Act 2010 (EqA 2010), talks about physical features as a barrier to disabled employees. Could it be that the legislation, only around a decade old, is already out of date?
Disability is defined as “a physical or mental impairment” (emphasis added) which has a long-term adverse effect on a person’s ability to carry out normal day-to-day activities (section 6, EqA 2010). Long-term is defined as “lasting for at least 12 months” or “likely to last for at least 12 months” (Schedule 1, EqA 2010).
Although this definition includes mental impairments, it seems that parliament primarily had physical restrictions in mind when drafting the EqA 2010.
What are the current requirements?
First, section 15 of the EqA 2010 protects against unfavourable treatment because of something arising in consequence of the employee’s disability, unless the employer can show that the treatment is justified as a proportionate means of achieving a legitimate aim.
Mental impairments are often invisible. People mask, hide or don’t display them in the way in which they might a physical disability.
In Nally v Freshfields Care Ltd ET/2401774/2014, it was decided that dismissing an employee for misconduct which arose from his mental illness constituted a breach of section 15 of the EqA 2010. Mr Nally was a care worker who suffered from PTSD. He was dismissed after telling a patient with dementia to “shut up” and later having an argument with a co-worker.
After the first incident, Mr Nally informed Freshfields Care of his condition and provided his doctor’s details so a medical report could be obtained. The tribunal found that this constituted Mr Nally putting Freshfields on notice of his disability.
As a result, his dismissal amounted to discrimination arising from disability. It was found that Freshfields should have been aware that Mr Nally’s behaviour was influenced by his PTSD and taken alternative action instead of immediately dismissing him.
Second, employers have a duty to make reasonable adjustments for disabled staff who suffer a substantial disadvantage. The employer must ensure that a disabled person is not placed at a substantial disadvantage by implementing any provision, criterion, practice or physical feature when compared to those who are not disabled. A failure to comply with this duty is discriminatory. (Sections 20 and 21(2), EqA 2010.)
In Bannister v Commissioners for HMRC ET/2500750/2016, Ms Bannister went on a long-term sickness absence as a result of depression and alcoholism. During her absence, it was decided that she would be moved to another team, at a different desk. Ms Bannister made it clear that she did not want to do this, as it would unsettle her.
Ms Bannister requested that she be able to sit at her old desk for two weeks on her return to work, before making the move. HMRC refused this request and this was subsequently found by the tribunal to be a failure to make reasonable adjustments.
This was despite HMRC having offered numerous other adjustments, including a phased return to work, temporary reduction in hours, elimination of performance targets and a lighter workload. A clearer understanding of what Ms Bannister needed as support may have brought about a satisfactory resolution for both parties before embarking on litigation.
What constitutes a “reasonable adjustment” for employees with mental health disabilities varies. Clearly employers must approach the issue carefully.
Often implementing flexible working arrangements and reduced workloads are helpful in reducing absence levels. The offer of contemplation rooms, breaks, flexible hours or counselling programmes are also widely used.
But is that enough?
There are estimates that UK businesses can save up to £8 billion annually by implementing better mental well-being support in the workplace. The benefits of talking about mental health can make a significant difference, but many people don’t know what to say or are fearful of saying the wrong thing.
What is mental health first aid?
Having someone trained to properly listen and understand, sitting side by side instead of face to face and asking what the person is going through or how they feel can make a significant difference in the management of a condition. A trusted, calm and non-judgmental listener can be the first step in essential treatment and recovery.
Organisations such as Mental Health First Aid England seek to normalise attitudes and behaviours around mental health, by training people to develop the skills necessary to look after peoples’ well-being.
Licenced training is designed to raise awareness of mental health issues and reduce the stigma faced by those who experience them. It provides practical skills, knowledge and confidence to recognise symptoms, and help and effective support to guide people towards seeking appropriate, professional help.
The number of disability discrimination claims at employment tribunals rose by 37% between 2017 and 2018. The removal of tribunal fees will be responsible for this in part, but could there be a correlation between the dramatic increase in depression, stress and anxiety in society? This spike is unlikely to be an isolated increase and is perhaps another alarming indicator that employers need to start adequately addressing mental health concerns at work and ensuring that the focus is on prevention, not cure.
Positive mental health allows people to realise their full potential, cope with the stresses of life, work productively and make meaningful contributions.