Mental Health is one of the major health challenges in Scotland and in the workplace.
There are a lot of myths and misconceptions about mental health.
According to findings by the Scottish Government, it is estimated that 1 in 3 people are affected by a mental health problem each year.
The Scottish Government has promised that improving mental health is a priority, publishing a ten year Mental Health strategy in 2017, which can be accessed here.
In employment law terms, some categories of mental health will meet the legal definition of a disability and so sufferers will be entitled to legal protections.
Mental health conditions can impact the workplace for the sufferer, the employer and other staff members. We will explain a little about what is meant by mental health below along with the legal protections and provide some basic advice for employers and employees.
What is mental health?
Mental health is a wide term and can include a person’s emotional, psychological and social well-being. A person with mental ill health can be suffering from one of many conditions and the effect it has on them can be huge and varies greatly from person to person. For most people their mental health can vary from day to day as well as at times of pressure or change in their lives – both personal and at work.
Common mental health conditions cover variations of depression, anxiety and stress but can also include conditions such as bipolar disorder, dyslexia, OCD and autism spectrum disorder.
Work related stress is very common but it is important to note that stress itself may not be a disability. The symptoms and effects of the condition must fit the definition below to be classed as a disability. However, it is very important for employers to be aware of stress in the workplace, how to identify it and how to approach it with the individual. The NHS set up a useful website to assist with this which can be viewed here. Poor mental health can heavily impact a person’s working life. It can affect their productivity along with attendance.
An important distinction to make is often whether the mental health condition is caused by or exacerbated by work or personal life as this can impact the treatment and effects upon work.
Mental health and work
The Equality Act 2010 protects those suffering from a disability against discrimination. The legal definition of a disability is as follows:
“a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities.”
The reference to “long term” is more than 12 months.
Mental illnesses can therefore be covered under this definition and are referred to as an “invisible disability.”
Under the Equality Act 2010, an employer is under an obligation to make reasonable adjustments to ensure workers with disabilities aren’t substantially disadvantaged when doing their jobs. A failure to make reasonable adjustments is a type of discrimination claim that employees can make in the Employment Tribunal.
Reasonable adjustments can relate to physical changes as well as changes to working patterns or workplace policies and procedures.
For a physical disability, it is normally more evident or visible, and therefore clearer, for an employer to identify what reasonable adjustments they could make to assist an employee in the workplace. For example, someone in a wheelchair would need an accessible workplace and possibly a lower desk, ramps etc.
With invisible disabilities it can be harder to determine what, if any, adjustments can be made. Employers need to work together with the individual as well as obtaining medical input and advice if necessary, in order to identify reasonable adjustments. Examples of reasonable adjustments for invisible disabilities may include:
- allowing employees to amend their working patterns to account for their condition e.g. starting later or finishing earlier, reduced hours etc;
- allowing someone with anxiety to have their own desk instead of hot-desking;
- changing the recruitment process to accommodate a disability;
Invisible disabilities are often misdiagnosed and also misunderstood. These conditions often fluctuate over time and manifest themselves differently in different people, making it potentially more difficult for an employer to assist an employee.
As disability is a protected characteristic, employees also have protection against direct discrimination, indirect discrimination, harassment, victimisation and discrimination arising from a disability.
Advice for employers
As an employer, you may find this all a bit daunting but there are a few simple things you can do in the first instance to promote positive mental health in the workplace. This can be simple things such as allowing small breaks, providing water and access to outside spaces but also you could consider organising events and morale building activities. Also, be involved with your staff, look out for anyone who may be exhibiting signs of stress or anxiety. ACAS provide some useful information on this here.
If you have staff members off for mental health reasons then be prepared to make reasonable adjustments necessary to assist them back to work. It is important to remember that not all reasonable adjustments are costly and in the majority of cases, adjustments create little or no additional cost to the employer.
Be mindful it may be that staff may need time off work to recover too – it is important to understand many mental health conditions can manifest themselves differently. Play to your employees’ strengths and make them feel part of the team. Respect the privacy of your employees and make any enquiries sensitively.
We always advise having a policy in place so you are well prepared for any eventualities well in advance. It is becoming more common to have a mental health policy in place, this would include advice on where and who to go to for support. However, a general sickness absence policy would cover the basics of absence monitoring, review meetings, reasonable adjustments and obtaining medical input among other things.
Mental health can be daunting for employers to deal with and in our experience it is often partly due to a lack of knowledge around mental health issues generally. Employers can’t be expected to know all there is to know about every mental health condition but that is why it is important to speak to and listen to your employees. Depending on the size of your workplace, training on things like disabilities, reasonable adjustments, stress at work etc may also be useful, particularly for managers.
Advice for employees
As an employee suffering from a mental health condition, the thought of managing it alongside going to work can be daunting and stressful in itself. Our advice is to keep your employer up to date on your condition as far as you feel is necessary and helpful. It will allow them to best assist you and it should help alleviate any workplace anxieties.
If there are reasonable adjustments you feel your employer should be making that would help you at work then suggest these to them in writing and discuss options. It may be things such as allowing you to work flexi-time or adjusting your tasks. Consider any ideas or options for making work as easy as possible for yourself, such as alternative therapies, exercise and diet. It will be encouraging to your employer if you are trying different treatments and they can work alongside this with workplace adjustments.
Also, be aware of the support and assistance that is out there to help you. Take advantage of occupational health support, counselling that may be on offer and alternative therapies. If you don’t feel you can discuss your condition with your line manager or boss face to face then consider putting it in writing either to them or to HR (if available). That way they get the information they need and you avoid any anxiety over workplace health discussions.
How can we help?
We hope you have enjoyed this article. If we can provide you with any further assistance on mental health in the workplace then please do not hesitate to get in touch. We’d be happy to help. You can contact us on 01343 544077 or send us a Free Online Enquiry.
Note: The original version of this article appeared on the Moray Employment Law website in July 2018.