Mental health in the workplace
Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 18, Issue 7
A Government leaflet on mental health at work lists “seeming distracted or showing a sudden loss in motivation” among the signs that an employee may be suffering the early stages of a mental health problem. Other indications,according to the experts, can include strained relationships with colleagues and poor management of junior staff.
On that basis, some of the most talented lawyers I know have been exhibiting mental health problems for the last 20 years.
The same is probably true in other occupations. Cambridge philosophy professor Simon Blackburn, for example, has written that “stark staring lunacy, really superlative absence of marbles” is a key to success in academia.
Research reveals that almost three in every ten employees will have a mental health problem in any one year. Most of these people will deal with their difficulties in their own time and way, and with no harm to the business. But a small minority, perhaps with more acute problems, may severely disrupt the workplace and sap the motivation and morale of colleagues.
It is unlawful under the Disability Discrimination Act 1995 for an employer to treat employees or job applicants disabled by a mental health condition less favorably than other employees. Since 2005, a mental impairment no longer has to be clinically well recognized to be covered by the Act. This means that potentially any mental health condition could be included.
The employer can justify treating disabled employees less favorably only if equal treatment would cause “substantial” damage to the business.
The employer also has to make “reasonable adjustments” to prevent the employee being put at a substantial disadvantage because of policies or practices, or any physical features of the workplace.
In addition, the Act obliges employers to take reasonable steps to help employees to overcome the effect of their mental health problems. This may include altering their working hours or tackling the causes of excessive stress.
Employees or job applicants are not obliged to tell an employer about their disability. However, disclosure obviously makes it easier for both employer and employee to make any adjustments needed to maintain or improve the person’s performance. Employers should therefore try to create a working environment that eradicates the stigma mental health can carry.
Mental health problems are also indirectly covered, along with other types of illness, by the Health and Safety Act 1994 and the Management of Health and Safety at Work Regulations 1999. These require employers to do what they can to ensure the health of someone returning from sick leave is not made worse by their work. Employers also need to carry out risk assessments and monitor their workforce’s ongoing health and well-being.
Following revelations that six children’s and charity programs had misled viewers, the BBC made its 16,000 editorial staff attend a two-hour course on safeguarding trust.
The course was for all employees – no matter how senior or famous– who were involved in making programs. It was part of the BBC’s damage-limitation exercise after the string of deceptions came to light.
Andrew Neil, who presents two political programs on the BBC, was contemptuous. “All 16,000 of us are going to be sent to re-education camps, a bit like Pol Pot’s Cambodia,” he told Daily Politicsviewers.
When studio pundit Michael Portillo suggested the comparison might be exaggerated, the ex-Sunday Times editor continued: “I would like to apologize for that entirely misleading analogy. I really meant to say Stalinist Russia.”
I was reminded of the story when a client asked me recently whether he could require a staff member to attend an important two-day training course 200 miles away in London.
The woman, whose contract specifically states that she may be required to travel on company business, claimed she could not go because her husband worked night shifts and there would be no one to look after their young children.
I advised my client that, since he had given her reasonable notice of the training, he was fully within his rights to expect her to go. He could discipline her if she refused.
His case was particularly strong since the rest of his staff were also having to attend the course. Making an exception for this woman may cause others to come forward with special circumstances, too.
But I also suggested he might consider whether he could find similar training for her, and for other staff members in a similar position, closer to home.
Employee relations tend to suffer when people are forced to do things against their will. The woman, who is a good employee, may decide to leave for another job if she perceives that the company is not doing enough to accommodate her wishes.
In addition, the course leader may object, and the value of the training be undermined, if one of the participants is attending against her will.
Mike PittEmployment-law partner at Greater Manchester solicitor Pearson Hinchliffe Commercial Law. He can be contacted by e-mailing michael.pitt@pearson-hinchlif.co.uk, or by telephoning +44 (0)161-785 3500.
