How to handle mental health issues in the workplace

Mental health issues are looming ever larger in the workplace. Helen Duffy examines what this means for employers and how they can manage them.


Key points

  • It is imperative that all employers, whatever their size, take steps to identify and manage mental health-related problems to prevent tribunal claims. Whatever their size, all employers are bound by the requirements of the Disability Discrimination Act and the Health and Safety at Work Act, and should be familiar with their obligations in this regard.
  • Employers should encourage open discussion with their employees and carry out regular appraisals to assist in the identification of stress and mental health issues. They should take early advice from medical experts with regard to their obligations to make reasonable adjustments. What is reasonable will depend on the size and resources of the employer in question.
  • Employers should also ensure they have a comprehensive mental health and stress policy, and make sure this is followed by their managers. They should review their policies and procedures to ensure they have the best possible defence to any claims.

Mental health problems are becoming increasingly commonplace, with many staff suffering from work-related stress, often leading to more serious conditions including depression and anxiety disorders. While research by the Mental Health Foundation found that 91 million working days a year are lost to mental ill health, fewer than one in 10 companies have an official mental health policy.

The Health and Safety at work Act 1974 is generally associated with physical health and the prevention of accidents. But it also imposes obligations on employers to ensure that staff do not suffer from stress-related illnesses as a result of their work. Among other responsibilities, employers must:

  • Assess and review work-related risks
  • Effectively plan, organise and review preventative and protective measures
  • Provide information and training
  • Audit the adequacy of their procedures.

The Disability Discrimination Act (DDA) 1995 imposes even more onerous duties on employers in circumstances where an employee suffers from a "disability" within the meaning of this Act. To be protected, the employee must have a “physical or mental impairment which has a substantial and long-term effect on his/her ability to carry out normal day-to-day activities”. The impairment must have more than a minor or trivial impact on such activities, and must have lasted (or be likely to last) at least 12 months, or for the rest of their life. It can become more complicated where an impairment has ceased to have a substantial effect, but that substantial effect is likely to reoccur. If that is the case, the employee may still be disabled.

Therefore, it is imperative that employers obtain expert medical opinion on the employee’s condition, asking for confirmation as to whether the condition constitutes a disability and what, if any, adjustments are necessary. This is best achieved by referring the employee to occupational health (OH). If an employer does not have an OH department, it can use external providers. It is also a good idea to get a GP’s opinion, but OH is better placed to comment.

It is particularly difficult for employers to understand their duties in respect of staff suffering from stress and stress-related conditions. Generally, stress is a more shortlived problem, and often will not satisfy the definition of a disability. But if it satisfies the criteria set out above, then an employer is still bound by the requirements of the DDA. Mental health conditions, including depression and anxiety disorders, regularly constitute disabilities, so employers must be particularly careful in this regard. An employer must also make reasonable adjustments to assist disabled staff, such as:

  • Reducing workload
  • Transferring to a different department/location
  • Allowing home working
  • Reducing working hours.

Employers are only required to make "reasonable" adjustments. And what counts as reasonable depends on the resources available to the employer. For example, an employer with only one employee, which requires someone to be present in the office, is unlikely to be expected to allow that employee to work from home by way of a reasonable adjustment. However, they may have to consider reducing the employee’s hours if they are able to find another part-time worker to job share with them.

Helen Duffy is a solicitor in the employment team at SA Law.


Defending a disability discrimination claim

Employees can bring claims including failure to make reasonable adjustments, disability-related discrimination and harassment. There are many things an employer can do to help prevent such claims, and to successfully defend them.

The following examples illustrate good practice for all employers that wish to properly recognise and manage mental health in the workplace:

  • Encourage open discussion with employees regarding their workload and stress levels.
  • Carry out regular appraisals, keeping full notes and checking that all employees are coping with their work.
  • Organise workshops to assist employees in managing stress and educating all staff to reduce the stigma regarding mental health issues.
  • Offer access to counselling.
  • Respond promptly to any employees who raise concerns regarding their stress levels or workloads.
  • Meet regularly with any staff who may suffer from mental health problems, discuss reasonable, adjustments and make full notes of these meetings.
  • Keep full records of all meetings regarding a claim, once the claim has been lodged.
  • Get signed confirmation from the employee of minutes of all meetings.
  • Keep evidence of all reasonable adjustments made (statements/ photographs/ letters).
  • Obtain OH reports at an early stage.