Mental health and wellbeing at work is a hot political potato right now. But where does the law actually stand?
Prime Minister Rishi Sunak recently said that his government is doing “everything we can to help more people thrive in work” because of the clear link between work and wellbeing.
But how well do the government’s laws support this mission? Which laws affect wellbeing at work?
This feature outlines the main laws you need to be aware of which are relevant to workplace wellbeing.
But, as Jodie Hill, Managing Partner and Founder at employment law specialist Thrive Law, who is speaking at MAD World on 12th October, says, it’s important to bear in mind that “the role of legislation is to create a basic minimum framework and employers should build from that”.
Legislation is the minimum required
“Legislation is not saying ‘this is all you should do as an employer’. Its job is to explain the bare minimum employers are required to do, because a lot of employers don’t know where to start when it comes to wellbeing,” she says.
She also points out it’s helpful to understand the difference between ‘primary’ and ‘secondary’ legislation when navigating the legal landscape. Primary legislation is the highest level of law possible, hardest to pass and typically refers to an ‘act’ or ‘statute’ or ‘law’ created by government. It’s broad and wide-ranging.
Secondary legislation is still legally binding but it is more flexible in terms of being more easily revoked or amended without new laws having to be passed. It goes more into the detail about how primary legislation should be implemented, containing detailed rules and regulations and specifics. It’s created by government agencies, ministers or other authorised organisations and is intended to fill in the gaps in the primary legislation.
Primary vs secondary legislation
“Secondary legislation contains the detail that is really important in terms of implementing wellbeing at work and is there to help support you achieve the things that are set out in the acts, the primary legislation. I am not aware of any secondary legislation for wellbeing; this is what needs to be created,” says Hill.
So, which legislation is most relevant to workplace wellbeing?
Health and Safety at Work Act 1974 (primary legislation)
This is one of the most important laws that wellbeing professionals, and any employers and professionals working to protect wellbeing, must be aware of.
While there is no specific ‘wellbeing law’, this is the closest we get to one because it outlines a common law duty of care.
Employers are legally required to do all they reasonably can to protect their employees’ health, safety and wellbeing at work.
This includes making sure that the work environment is safe and protecting staff from harm in all its guises.
“The Act draws a distinction between health, safety, and welfare as distinct concepts,” says Mark Howard, Developing Markets Consultant at Krysalis Neuro Occupational Therapy. “Wellbeing is likely to extend to include diagnosed medical conditions. It is unclear if it may extend further to include enjoyment of work and motivation generally.”
However, as he points out, the HSE published its strategy for 2022-2032 last year called ‘Protecting people and places’ and cited its primary objective as to “reduce work-related ill-health, with a specific focus on mental health and stress”. This clearly confirms that mental health will be more of a focus than ever going forward.
One intention of this law is to ensure that employers treat mental and physical health as equally important. This means that potential ‘harms’ to health including psychosocial risks must be assessed too, rather than purely harm to one’s physical being, which has traditionally been the heartland of Health & Safety professionals.
As Bertrand Stern-Gillet, CEO of Health Assured says:
“This can manifest itself in many ways but could include ensuring that employees have a work/life balance as well as ensuring they have the right equipment and training to carry out their work safely. A claim cannot be brought specifically for such a breach. However claims could be brought indirectly for discrimination, breach of contract, and constructive dismissal.”
These legal obligations are only related to risks which occur as a result of/at work. Howard explains this further:
“Within the health and safety context, employers are not responsible for risks arising which are unrelated to the workplace. Recently there has, rightly, been an increased focus on workplace welfare and wellbeing, and this emphasis is only likely to increase going forwards.”
Two important parts of this law to focus on, says Jo Yarker, Managing Partner, Affinity Health at Work, are that an organisation doesn’t cause “foreseeable” harm, and that it takes “reasonably practicable” actions, otherwise it will be breaking this law.
“Basically, if any kind of harm is foreseeable, then an organisation has a duty to take action to prevent or mitigate the risk to harm, taking actions that are reasonable in terms of time, money and effort given the size of the risk. Where no action is taken the organisation is effectively in breach of the HSE Act” she says.
The Management of Health and Safety at Work Regulations 1999 (secondary legislation)
This is where the legal need for companies to make a ‘suitable and sufficient assessment’ of the risks to the health and safety of their employees at work is made clear.
This means that by law employers with 5 or more employees, must:
Identify any risks to their employees’ health, for example by carrying out a risk assessment
Take steps to prevent or reduce work-related stress
Commit significant aspects of its risk assessment to writing
Employers can also find more useful guidance to ensure they are promoting positive mental health at work in HSE’s Management Standards and the ISO 45003 guidance. But this is not law, it’s best practice advice which, if followed, will help to prevent breaking the law.
“Our experience is that even those organisations that have a lot of resource and expertise find the ISO guidance complex,” says Yarker. “The HSE Management Standards are a much more friendly, entry-level read.” The WHO guidelines on mental health are also useful (see this article for more info).
The Equality Act 2010 (primary legislation)
This makes it a legal obligation for employers to make reasonable adjustments for employees with disabilities. This includes a mental health problem if it has a substantial, adverse, and long-term effect (likely to last or has lasted 12 months on normal day-to-day activities (not just work related activities).
“The mental health piece is what employers often miss in this legislation,” says Workplace Mental Health and Wellbeing Strategist Amy McKeown. “When employers think of ‘reasonable adjustments’ they mostly think of getting the right fitting desk, or such like, rather than thinking about adjustments that help mental health like adjusting the nature of the work or time to rest.”
Employment lawyer Hill describes this act as “the key piece of legislation guiding employers when dealing with instances of discrimination” and affords “significant protection to employees, workers and job applicants”
The Equality Act 2010 identifies nine protected characteristics:
Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
Jo Yarker says: “The new Acas guidance on reasonable adjustments for mental health provides information for help employers, managers and employees and includes examples of good practice that show putting in place small changes to the way someone works can make a big difference to an individuals’s access to work, and can help organisations meet their legal obligations.”
The Employment Relations (Flexible Working) Act (primary legislation)
This has now received Royal Assent and is due to become law in 2024 .
It makes changes to how flexible working requests can be made, in light of the huge changes to the working world post-Covid, and due to significant campaigning from bodies like the CIPD on the matter.
ACAS Code of Practice on Flexible Working recommended that employers should offer an appeal if they reject a request, but this hasn’t been included in the act.
Employment lawyer Hill explains the main changes are:
Employees will be able to make two flexible working requests in any 12-month period.
Employers must deal with requests within two months of receipt—if no extension is agreed.
Employers are unable to refuse a request until they have ‘consulted’ with the employee. It remains to be seen, however, what this ‘consultation’ needs to include, since there is no legislative de minimis requirement.
Employees won’t need to explain the impact of their request, if accepted, and how any impact might be dealt with.
“All these changes to flexible working will help with wellbeing because if flexible working is more accessible, that’s helpful for people who are struggling with their mental health, or don’t want to get to the point of struggling, because they can enjoy a better work life balance,” says Hill.
Day One Flex (secondary legislation)
The act itself doesn’t contain the right to request flexible working from day one. However, alongside passing the Flexible Working Act, the government announced that secondary legislation will give employees the right to ask for flexible working from day one of a new job.
Nevertheless, until this is actually passed, employees need to have 26 weeks of service before they are able to make a request. Hill explains: “Employees are able to make the request but they don’t have the statutory right so the employer doesn’t have to consider it.”
Many wellbeing professionals welcome developments in this area.
“It’s really positive that we’ve got the new legislation on Day One Flex on the horizon because flexible working will have to be considered as soon as someone starts at a new company in future,” says Cali Gold, Head of People, YuLife. “It means you can have that conversation early on about ‘how can we put a framework around this role that considers all these important factors?’
Corporate Sustainability Reporting Directive (primary legislation)
This became law on 5th January 2023, meaning its requirements need to be incorporated into company reporting starting in 2025.
This is the revised Financial Reporting Directive which has been updated to ensure companies report on sustainability goals. In the main, it applies to large listed companies.
Under the CSRD, companies will be required to disclose the actions they are taking around:
Treatment of employees and social matters directly related to wellbeing
Environmental matters
Social matters and treatment of employees
Human Rights
Anti-corruption and bribery
Diversity on company boards (in terms of age, gender, educational and professional background)
“Currently this legislation is only mandatory for large companies, but there will be a trickle down effect and likely mandatory reporting for SMEs to come,” says Lucy Boreham, Director at female led specialist ESG consultancy Baynel. “This new regulation is trying to bring consistency in non-financial metrics (ESG) as there isn’t a global standard, just best practice.”
Laws recently under discussion…
Should Mental Health First Aid be mandatory?
The idea of making mental health first aid in companies mandatory has been muted for years now. Hill was invited to lead a parliamentary roundtable by the MP Dean Russell on the topic recently.
This roundtable concluded that the point of any such changes in the law would be to achieve parity between physical and mental health. It was concluded that – while mental health first aid is a good idea – it’s certainly not the only solution.
Hill gave her opinion that the law needs to support employers more in terms of what they should be doing about workplaces wellbeing; it needs to identify the actual problems in the workplace, then recommend multiple possible solutions for them.
“There is limited secondary legislation supporting wellbeing and mental health at work compared to physical health,” she says. “I’m now drafting new law which does this. It will recommend assessing the risk on an organisation and individual level and look towards solutions that work for different employers based on this data, rather than legislating that everyone needs to implement the same solutions. The hope is to move towards a data driven approach which avoids taking employers down a tick box route.
New law around employers experiencing menopause symptoms
Menopause campaigners were lobbying for menopause to be added to the Equality Act’s list of protected characteristics. But this proposal was rejected because the government concluded that it could be discriminatory.
“The general consensus is that many menopause sufferers will already be protected [by the Equality Act] so it doesn’t warrant its own protected characteristic,” says Hill. “Menopause can fall under ‘disability’ so employees can ask for reasonable adjustments if they can prove it’s having a substantial impact on their ability to do their job and need the adjustments to function at the same level as their non-menopausal colleagues.”
Earlier this month Direct Line had to pay out nearly £65K to a former menopausal employee because it failed to make reasonable adjustments for her. The employee filed a constructive unfair dismissal claim which she argued breached the Equality Act 2010.
While her claims around sex and age discrimination were not upheld, her claims around being ‘disabled’ due menopausal symptoms were. The court concluded that Direct Line failed to implement eight possible reasonable adjustments that could have made a difference to the employee, and the case’s outcome.
Right to Disconnect
This is another possible law being talked about, already in force in countries like France, and campaigned for by some in the UK wellbeing industry. And it’s a topic that the Labour Party is keen to stamp its mark on and add to the political agenda, adopting it as part of its campaign manifesto (see here for more on this).
However, many experts can’t see the legislation working in the UK for cultural reasons.
McKeown, for example, says:
“The Right to Disconnect actually penalises against people with mental health issues, and women, and anyone who might work different hours to the traditional working day. We should question whether this is the right approach.”
