Recent research carried out by the Chartered Institute of Personnel and Development has revealed that mental ill-health is now the leading cause of long-term sickness absence for more than one in five organisations in the UK. The Mental Health Foundation has also reported that, each year in the UK, 70 million workdays are lost due to mental ill-health. This covers a wide range of illnesses including depression, anxiety and other stress-related issues.
There is also evidence to suggest that the number of disability discrimination claims brought in the employment tribunals increased by more than 35 per cent between 2017 and 2018, and has increased by 99 per cent since 2013.
One potential reason for this sharp increase might be the abolition of tribunal fees, with more individuals willing to bring discrimination claims. However, a recent analysis has found that discrimination claims have risen eight times faster than the increase in other employment tribunal claims. This could suggest that the rise may be driven by more individuals suffering from greater workplace stress than in previous years.
Unfortunately, many staff are uncomfortable talking about issues with which they are struggling and this applies far more to mental health issues (for fear of looking weak) than physical ones. However, mental health issues, when not dealt with in a coordinated manner, can impact organisations in various ways. They can lead to increased instances of absences and staff turnover, which, in turn, can lead to a loss of productivity, loss of key skills and potential reputational and legal risks. Each of these elements, alone or together, can have material cost consequences for a business.
Employers have a general duty to promote the health, safety and wellbeing of their staff, as far as reasonably practicable. This applies equally to physical and mental health. Without giving this duty proper weight, organisations can be faced with numerous tricky scenarios including extended periods of absence, episodes of poor performance, and allegations of bullying and harassment. Employers should therefore ensure that they give this responsibility due regard by making regular health and safety assessments. In terms of mental health considerations, this could include risk assessments to ascertain whether their staff's workload is appropriate. Breaches of the general duty can result in criminal liability as well as other civil claims.
The most obvious claim that might arise in connection with an individual's mental ill-health is a potential disability discrimination claim under the Equality Act 2010, if the mental ill-health has a substantial, adverse and long-term effect on the individual's ability to carry out day-to-day activities. Employers must not treat staff less favourably because of their disability or for a reason related to their disability. Employers have a duty to make reasonable adjustments for any employee experiencing a disability under the Equality Act 2010. Reasonable adjustments for an individual with mental health issues could include adjusting their duties, reducing their working time and allowing time off for treatment.
If an employee has been dismissed by reason of incapability due to mental ill-health, this could give rise to claims both for unfair dismissal and for disability discrimination. Capability is a potentially fair reason for dismissal. However, for an organisation to avoid liability, this must be supported (among other things) by a fair process, sufficient medical evidence and a demonstration that alternatives to dismissal have been considered. Remember that compensation for discrimination claims is uncapped.
There is also a risk that, if an individual has had an excessive workload or been bullied and harassed, they might have suffered personal injury as a result. This could expose the organisation to a potential negligence claim.
The Stevenson-Farmer review of mental health and employers, published in October 2017, sets out what employers can do to better support employees, including those with mental health problems, to remain in and thrive through work. The review includes a comprehensive analysis that explores the significant cost of poor mental health to UK businesses and the wider economy. The government has pledged to commit to its 40 recommendations. However, there are many steps that organisations can take now to try to promote positive mental health in their work place.