Employers’ legal duties for employee mental health: Navigating disclosure and foreseeability

Ahead of one of our www.makeadifference.media webinar, we received some very specific questions from a registered attendee. As it required some legal input, we weren’t able to answer it during the webinar, but have followed up here with answers contributed by Pam Lock from Loch Associates as we thought that it would be of general interest to our readers.

These were the questions:

• What are Employers’ legal obligations to employees regarding Mental Health issues if not raised but reasonably foreseeable?
• What are Employers’ legal obligations if MH issues are raised by the employee or by a colleague?
• What are the watch outs, do’s & don’t’s?

Here are the answers.

What are Employers’ legal obligations if mental health (MH) issues are raised if not raised but reasonably foreseeable?

All employers have a ‘duty of care’ to their employees and as such, they must do everything that they reasonably can to support the mental health, safety and wellbeing of their staff. This includes providing a safe working environment; protecting staff from discrimination; and carrying out risk assessments. Under the Equality Act 2010, employers who are aware of an employee’s mental ill-health are under an additional obligation to make reasonable adjustments in order to support the employee, if they have a disability, as defined by that Act. 

Note from Make A Difference: You can access Health & Safety Executive’s guidance on stress-risk assessment here.

What are Employers’ legal obligations if MH issues are raised by the employee or by a colleague?

The obligation to make reasonable adjustments arises where the employer either knows about a disability or they ‘ought reasonably to have known’ from the information that they have. 

It is a common misconception that employers cannot be liable if an employee has failed to disclose their mental ill-health and/or disability. In fact, not making sufficient enquiries about someone’s condition, could potentially expose employers to successful disability discrimination claims, especially if they are unable to show that they have done all that they could reasonably do to establish if it was a disability.  

It can often be the case that employers are unaware of an employee’s mental ill-health, given that it may be less ‘visible’, are more hidden, than other disabilities. This can become even more difficult, in particular when an employee’s condition is yet to be diagnosed or where an employee tries to conceal their mental ill-health from their employer.  The reality is, however, that if an employee is deliberately misleading their employer and failing to disclose the true nature of their condition, an employer cannot be expected to know, and the employee will have great difficulty in seeking to rely upon this at a later juncture. 

That said, even if an employer has not been told directly, but ought reasonably to have known, based on the information before them, they will be deemed to have ‘constructive knowledge’ and as such be treated in the same way as if they had been told directly. 

Steps that employers could take in order to find out more about an employee’s mental health would be to discuss the situation with the employee directly (so long as they are happy to do so) and actively listening to the employee and to then consider seeking medical advice either from the employee’s GP in the first instance or refer the employee to an Occupational Health specialist, to obtain a report for guidance and clarification. 

As it is not always obvious if an employee is struggling with their mental health, it is particularly useful for employers, managers and colleagues to be able to ‘spot the signs’ early on of mental ill-health.  Typically, unless concealed, these signs could include changes to the way in which an individual would usually act which may be out of the ordinary for them, for example poor performance or forgetfulness; talking more or becoming more withdrawn; being irritable or tearful; poor timekeeping; obsessive compulsive behaviour; or possibly unexplained aches and pains.  If any changes are spotted, it might be an appropriate time to take the employee aside and ask them if they would like a chat and check in to see if they are ‘ok’.

Some Do’s & Don’ts

Do’s

• ‘Normalise’ conversations about mental health in the workplace to stamp out stigma.
• Have clear channels of communication, toolbox talks and signposting.
• Encourage a culture of regular check-ins and active listening.
• Consider reasonable adjustments.
• Train staff on how to ‘spot the signs’, on how to approach conversations and where to direct someone if support is needed.
• Encourage a healthier work/life balance and lifestyle choices.
• Have Mental Health First Aiders and Champions or ‘buddying up’ in the workplace.
• Have a Mental Health & Wellbeing Policy and review other relevant policies to see if further adjustments are required, such as  Absence Management, Performance, Disciplinary and Equality, Diversity & Inclusion.
• Promote an Employee Assistance Programme (EAP).

Don’t’s

• Make assumptions – mental ill health conditions can manifest themselves in different ways.
• Assume that ‘one size fits all’.
• Turn a blind eye and ignore the situation or information disclosed. 
• Be afraid to start a conversation and to ask an employee if they are ‘ok’ – and if necessary ask them a second time.
• Perpetuate the stigma!

It is essential that employers do all they reasonably can to create a working environment that promotes positive mental health and wellbeing and where employees feel safe and comfortable to talk freely about their mental health. Employers need to ensure that health, safety, employee wellbeing and inclusion are at the forefront of their core management priorities.

Webinar:

You might also be interested in this webinar “Understanding mental health in HR and employment law”, which was run by Breathe HR with input from Tessa Robinson, Senior Associate Lawyer with employment law experts Outset and Natalie Ellis, Managing Director, Rebox HR. You can view the webinar here.

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