How to keep mental health front of mind

In January 2017, the prime minister commissioned Lord Dennis Stevenson, former HBOS chair, and chief executive of mental health charity Mind, Paul Farmer, to conduct a review into how employers can help all employees, including those with mental health problems, to succeed in the workplace. On October 26, 2017, the Stevenson and Farmer review published its findings about mental health in the workplace, which found that the challenges were much bigger than originally thought.

The review found that:

• 300,000 people with long-term mental health problems lose their jobs each year. This is approximately double the rate of those without a mental health condition and a much higher rate than those with physical health conditions.
• Approximately 15% of people in work have symptoms of an existing mental health condition.
• Poor mental health costs employers up to £42 billion annually because of problems such as poor productivity, sickness absence cover and replacing employees who leave.

Key recommendations

The review recommends that all employers implement a framework of actions to help employees to thrive in the workplace. The authors believe this should be achievable with little or no cost to the employer. It includes:

• Creating and implementing a mental health at work plan;
• Developing mental health awareness among employees and encouraging open conversations about mental health;
• Providing good working conditions and a healthy work-life balance;
• Training line managers to effectively support employees;
• Monitoring employee mental health and wellbeing.

The review suggests larger employers (those with 500 or more staff) and the public sector should go further and improve accountability, transparency, disclosure and access to clinical support.

There is a call for the government to align occupational health and the practical support available from the NHS to create an integrated in-work support service to assist employees. This will be welcomed by employers, who are often unaware of the scope of external support available to individuals as part of the wider management of employees with mental health issues.

Changes to existing discrimination legislation have also been proposed to enhance the protections for employees with mental health conditions and to clarify the role of employers in providing reasonable adjustments. This will no doubt be a concern for employers, who have been working with the Equality Act and associated tribunal guidance for a number of years and may be resistant to further legislation in this area.

The review suggests that statutory sick pay (SSP) should be more flexible to better allow for individuals to return to work on a phased basis. The thinking behind this recommendation is that SSP could “top up” pro rata wages during a phased return to work. While an interesting idea, the low rates of SSP are likely to be of limited assistance to many employees.

What now?

Employers will be aware that the Equality Act 2010 covers both mental and physical conditions for the purpose of establishing whether a condition could amount to a disability. Employers should always consider the extent to which any mental health issue may amount to a disability as, if so, such individuals would be entitled to enhanced protections such as the duty to make reasonable adjustments.

Whether or not an employee’s poor mental health amounts to a disability, poor productivity, increased absence rates and a failure to fulfil potential is costly to a business. The Stevenson and Farmer review recommends formalising the support available for all employees and confirms that with the correct frameworks in place, individuals with mental health conditions can and should be capable of contributing positively to the workforce.

The prime minister has been clear that mental health is on the government’s agenda and it is considering some of the changes to legislation suggested in the review. Businesses should consider the suggested changes and to what extent they adopt the recommendations set out in the review.

Abigail Maino is associate at asb law LLP. For more information, contact: abigail.maino@asb-law.com