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12 January 2017

Mental Health in the Workplace – Theresa May’s “shared society”

This week, Theresa May, the Prime Minister, set out her plan for a “shared society”.   As part of those plans she announced a range of measures to transform mental health support in schools, workplaces and communities.

She made these announcements during the course of a lecture to the Charity Commission.  The Prime Minister stated parity for mental and physical health could only be achieved if every institution recognised the vital role it can play in delivering the objective. 

The objective set resonates with the outcomes of our survey we conducted with Maudsley Learning at Work last year, the results of which were reported at the workshop session held at our offices on 28 September 2016. The survey confirmed there was wide spread recognition that businesses needed to take active steps to address the challenges that arose due to mental health issues in the workplace. 

As the Prime Minister highlighted, 1 in 4 people has a common mental disorder at any one time, with the annual economic and social cost of mental illness estimated at £105 billion.  In 2014 mental health conditions affected almost 1 in 5 of all working age people and around 1 in 7 of people in full time employment.  In the work place 18 million days were lost to sickness absence caused by mental health conditions in 2015, at a cost of around £9billion to employers.

The Prime Minister announced there would be a new partnership to improve mental health in the workplace.  Lord Dennis Stevenson, who has suffered from clinical depression and is a long time campaigner for greater understanding and treatment of mental illness, has agreed, together with Paul Farmer CBE, CEO of Mind and Chair of the NHS Mental Health Taskforce, to find ways in which both business and the public sector can support mental health in the workplace.

The experts will lead a review on how best to ensure employees with mental health problems are able to thrive in the workplace and to perform at their best. This will involve practical help including promoting best practice, and learning from trail blazing employers, as well as offering tools to organisations whatever size they are, to assist with employee wellbeing and mental health.

In particular it will collect evidence and review current discrimination protections for workers in the workplace on the grounds of mental health.

Whilst poor mental health can be a disability giving the worker legal protection, this is not always the case.  Employers struggle to apply the law in a fair manner and often find it difficult to recognise whether a workplace problem under review is, or is not, connected to an employee’s disability. For example, in the recent decision of City of York Council v Grosset, the employee was found to have suffered discrimination arising from his disability when he was dismissed for misconduct in circumstances where, despite knowing that the employee had a disability, the employer had reasonably concluded that the reason for the dismissal was unrelated to the employee’s disability.

Further as Maudsely Learning explained “work related stress,” “depression” etc are terms often given by GP’s to explain the reasons for an employee’s absence from work but the actual condition may not amount to a disability. Whether the reason given for the absence is a disability will depend on the extent to which the employee’s impairment has a long term impact on their ability to carry out their day to day activities, with the onus being on the employee to prove that this is the case.

In Henry v Dudley Metropolitan Council the employee was diagnosed by his doctor as suffering from stress and anxiety, but he failed to provide evidence to support his assertion that this amounted to a disability. The tribunal said that his stress was largely a result of his unhappiness about what he perceived to be the unfair treatment of him and to that extent a reaction to life events.  The decision also led to a significant costs order being made against him.

These cases highlight the difficult issues both employers and employees face in resolving difficult health issues. In recognition of this, we hosted a seminar with Maudsley Learning at Work in September, provided practical guidance to help employers address this, supported by insights we gleaned from a survey we ran in June 2016. The summary of the event and report can be found on our website here. During the course of 2017 we plan to run further workshops to consider these issues to assist employers to understand mental health and to assist businesses to promote good mental health through learning and discussion to supplement policies and procedures.  Ensuring awareness of legal obligations and putting in place policies and procedures will help businesses prevent and defend any claims as well as comply with their legal obligations.