Are the current laws on Workplace Wellbeing effective, & will the new changes really make a difference?

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One of the topics bound to be a hot one at MAD World 2023 on 12th October is the changing legal landscape around workplace wellbeing (if you haven’t registered yet, get your ticket here).

The government has made no secret about the fact it wants to put renewed focus here and update law for the new working world.  The Department for Work and Pensions (DWP) and the Department of Health and Social Care (DHSC), for example, are in the middle of a two-part consultation on ways to increase the uptake of Occupational Health (OH) provision. 

This aims to increase the labour force participation by tackling economic inactivity due to long-term sickness – which PM Rishi Sunak sees as fundamental to his stated priorities of halving inflation and growing the economy. These consultations close on the day MAD World takes place (both at 12.59pm on 12th October, for more on this see this article here and for an introductory article on the existing laws, see this article here).

OH argues it’s best placed

As the Society of Occupational Medicine (SOM) Chief Executive Nick Pahl says: “Current legislation does not go far enough as the current situation is unequal access. We need legislation to ensure universal access to Occupational Health(OH) and wellbeing.”

SOM has done a great job lobbying and arguing Occupational Health (OH)’s case to government as the best professionals to lead these changes in legislation. Pahl outlines this argument as:

“OH is well placed to drive wellbeing legislation as it understands employers’ health challenges, where medicalising should be avoided. It also understands how to strategically intervene using data tools such as health needs assessments and health surveillance. It is evidence based and delivered by competent and accountable professionals – whereas wellbeing is less so. ”

OH needs to win hearts and minds in wellbeing

But, while OH has succeeded in getting government on board, it has been less successful at winning the hearts and minds of other professionals working in wellbeing, which it will need to do for the best outcomes going forward. 

There are many other specialists, like Mark Howard, Developing Markets Consultant at Krysalis Neuro Occupational Therapy, who are keen that “employers and the wider service suppliers should engage in consultations; it should not be the sole prerogative of OH”.

But what about the other laws pertaining to workplace wellbeing in general – to what extent do industry experts think they are generally fit for purpose and helpful to employers? Have they kept up, or are they also lagging?

Laws aren’t helping Workplace Wellbeing

“There’s a lot of talk from the government about legally regulating workplace mental health right now,” says Ngozi Weller, Director, at culture change consultancy Aurora. “But laws protecting an employee’s mental health already exist. There’s the 1974 Health and Safety at Work Act which states that employers have a ‘Duty of Care’ to support the health, safety and welfare of employees (including their mental health), and the 2010 Equality Act which protects many people with mental health issues from unfair treatment in the workplace. I don’t feel that another law is necessary.”

However, Weller’s main concern isn’t actually with the laws themselves – despite describing them as “antiquated” and “in need of revision” – it’s with the difficulty in actually enforcing the law. 

“It’s so difficult to prove that an employer is liable for contravening either of those laws,” she says. “You’re essentially asking a person who has been unfairly treated, or not supported in a mental health issue, to find the strength and resources to fund and fight a claim, against an organisation. It’s a lengthy and expensive process, so it’s unsurprising that the majority of the cases don’t go to court. People would rather quit rather than face the added stress. I don’t see how another law would change that; a law counts for nothing if it’s not enforced. If the government is serious about tackling adverse mental health, then the focus should be on getting companies to comply more fully with the laws that already exist.”

Psychosocial risk must be assessed

This is a point that is made repeatedly with those au fait with the law. Workplace Mental Health and Wellbeing Strategist Amy McKeown, for example, welcomes the “direction of travel” government is going in. She picks out the example of the Australian governments making it law that businesses report on psychosocial risk and implement an action plan “so far as is reasonably practicable”. But McKeown believes efforts will be for nothing if there isn’t better law enforcement. 

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She says:

“The law is getting more complex but there is absolutely no point bringing in more laws around mental health unless we’re actually going to enforce them because we’ll end up in the same place. Look at the Health and Safety legislation. It’s been in place since the 90s but is rarely enforced and many organisations have not done their risk assessments or put in any structure of thought around the legislation. Most people don’t even understand their legal responsibilities let alone have designed programmes around them! Before adding more laws we should make sure we enforce the ones we have got and use these as a minimum standard while encouraging better practices. Carrot not stick.  ”

Companies could be leaving themselves open

Her biggest legal bugbear is the “Time to Change” effect which encouraged organisations to get employees to come forward and speak about their mental health experiences and conditions, but not to put any legal structure around these disclosures. 

“Mental first aid networks have left themselves legally open,” she says. “Yes, they are cheap and easy to roll out but governance and boundaries have not been thought about which make disclosure safe for the employee, but also legally protects the organisation. If an employee discloses to a peer in an peer network the organisation has promoted, then technically this is a disclosure to somebody in an organisationally endorsed role. ”

She predicts a “massive legal quagmire” in future where organisations will find themselves challenged in court because employees have disclosed disability then their employer has not put in any protection; ergo, the problem was “foreseeable” and therefore not taking preventative action would break the law.

Balancing law with good faith

Having worked on an independent review of mental health and employers, Thriving At Work 2017Age UK Chief Executive Paul Farmer has more sympathy for the government’s challenge of using law to effect cultural change, and balancing this with the faith employers will do the right thing. Does he think the law goes far enough on wellbeing issues?

“It’s a good question,” he says. “When we wrote Thriving at Work, we took a view that it was better to ‘encourage good practice’ rather than legislate for poor practice. Since then, I think we’ve see that approach work well with a huge expansion in support for employee mental health.”

In general, he greatly favours a “carrot” rather than “stick” approach when it comes to changing behaviours. With regard to the Equality Act specifically, he says it’s “still early days” and admits that the legislation does need testing further. “But my sense is that the protection in the law is positive, but it isn’t well understood,” he says (for an introduction to the law on workplace wellbeing, see this article).

Employers should aim higher than the law

While the law is obviously important, and employers need to adhere to it or face potentially damaging consequences, this shouldn’t be where they set their bar; this would be too low and lead to Farmer’s feared marketplace of poor practice. 

Employers serious about workplace wellbeing should be aiming much higher. Unfortunately, while legislation shouldn’t be the focus of organisational efforts, it often is, according to experts consulted for this piece. 

Sarah Wilder, Employment Lawyer and Owner of DEI consultancy mpm included says that, to effect cultural change, you always need “individual companies to go above and beyond what the legislation requires”.

“Workplace wellbeing is a nuanced topic, and it’s very different to the fundamental protection that the law offers whether that’s anti-discrimination, the right to flexible working, or health and safety,” she adds.

Look at your values and culture first

Her advice would be for companies to look at their specific culture and values first when considering workplace wellbeing strategy, then set out the detail for themselves within their own framework. 

Inspiring employers with more examples and case studies, which they could follow, would help instigate change and prove a good “carrot”, says Jo Yarker, Managing Partner, Affinity Health at Work. For her, it’s not necessarily that the law needs changing (“it’s fine”) but more that “there needs to be much more accountability and joined-up responsibility for assessing and managing psychological risks within the organisation, for operating in alignment with the law”.

“Managing risks to mental health, like excessive workload is a board level responsibility,” she says. “It requires that the board thinks about what its targets are, its resourcing and supply chain, and all the elements that affect employee wellbeing. The board is where you change work design.”

H&S needs a perspective shift

Moreover, there needs to be a shift in perspective from Health and Safety professionals, already happening in more progressive companies. Typically they are used to assessing physical safety but they need to get better at psychosocial risk evaluation.

“There needs to be a shift in knowledge within Health and Safety,” she says. “They need to know more about psychosocial risks. Have more ability to influence the board and other stakeholders; currently their voice is quite quiet. They need to know where the intersection between H&S and disability law comes in.”

She suggests companies start with these basic questions: is the work safe physically and psychologically? Is the organisation taking steps to prevent harm? Are there any foreseeable risks that need to be mitigated? Then, also look at how people’s well being is supported. 

Laws need to be enforced

In addition, to make the current laws work better, Yarker agrees they need to be more readily enforced by government, and that organisations need to more regularly review their risks and develop a mindset of continuous improvement, rather than a tick-box mentality.

Nevertheless, if laws are clearly outdated and no longer fit the needs of modern society, then all our experts encourage professionals to voice their concerns. You just need to look at the power of activism to get governments to rethink in the recent changes to the Flexible Working Act (for more on this, see this article).

Remember the consultations we mentioned at the beginning of this piece? A bit like the National Lottery, you’ve got to be “in it to win it”. As Howard says “you have plenty of time to make your views heard”.

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