Mental Health and Employment Law

Mental Health Awareness Week takes place from Monday 13 – Sunday 19 May 2024.

In recent years, mental health in the workplace has gained significant attention. Some employers may have developed and implemented a stress and mental wellbeing at work policy which set out it’s understanding of work-related stress and mental health, its commitment to identifying and eradicating sources of work-related stress and its commitment to providing a working environment which supports mental wellbeing.

More and more employers are providing mental health first aid training to employees to help them recognize the signs of mental health issues and provide appropriate support. It is also increasingly common for larger organisations to have mental health champions, confidential counselling and/or an employee assistance programme.

With advancements in technology and with employees feeling that they cant ‘switch off’, we may see in the coming years, a “right to disconnect”. The concept of the “right to disconnect” has grown in visibility since COVID. California is now considering a bill giving employees the right not to respond to calls, emails and texts from their bosses outside of paid work hours. The so-called “right to disconnect” would allow California’s labour commission to fine employers for interrupting personal time. Other countries including France, Belgium and Italy have introduced a “right to disconnect”.
 
The Labour party explored the idea of a “right to disconnect” in their Employment Rights Green Paper.  It is likely that employee rights and employee welfare will form a core part of election campaigning this year. Any right to disconnect” will need to strike the balance between the needs of the organisation whilst also supporting employees to switch off from work in this ever increasing digital age.

The current position

Employers should be familiar will their legal obligations including under the Equality Act 2010, the Health and Safety at Work etc Act 1974, the Management of Health and Safety at Work Regulations 1999 and the Working Time Regulations 1998.

Equality Act 2010

Under the Equality Act, a disability is defined as a physical or mental impairment that has a substantial and long-term negative effect on someone’s ability to do normal daily activities.

A condition is ‘long term’ if it lasts or is likely to last 12 months. There are many different types of mental health condition which can lead to a disability, including:

• Dementia
• Depression / anxiety
• Bipolar disorder
• Obsessive compulsive disorder
• Schizophrenia

Disability discrimination can occur in various forms. There are six main types:

Direct discrimination. This is where an individual is treated worse than someone else because they have a disability, or they have a connection with someone who’s disabled (discrimination by association) or someone else thinks they’re disabled when they are not (discrimination by perception).

Indirect discrimination. This iswhere a working practice, policy or rule applies to everyone, but the practice, policy of rule puts a person or group at a disadvantage because of their disability.

Failure to make reasonable adjustments. Employers have a legal obligation to make reasonable adjustments to support employees who are disabled. Reasonable adjustments may include:

• Flexible working hours
• Changes to work duties or environment
• Providing additional support or supervision
• Offering time off for medical appointments or treatment

Discrimination arising from disability – this focuses on something that results from a disability, not because of the disability itself.

Harassment – Disability related harassment is when someone experiences unwanted behaviour related to disability.

Victimisation – this is where someone is treated less favourably as a result of being involved with a discrimination or harassment complaint.

Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999

The Health and Safety at Work Act 1974 created a ‘duty of care’ on employers to protect their employees from the risk of stress at work.

The Management of Health and Safety at Work Regulations 1999 requires all employers to make a ‘suitable and sufficient assessment’ of the risks to the health and safety of their employees at work.

Working Time Regulations 1998

The Working Time Regulations 1998, provides for a maximum number of weekly working hours, the right to rest beaks etc. Whilst a worker can opt out of the 48-hour average working week, workers have the right to one uninterrupted 20-minute rest break during their working day, if they work more than six hours a day.

Conclusion

Understanding mental health and employment law is essential for both employers and employees. By complying with the Equality Act 2010 and making reasonable adjustments, employers can create a supportive work environment that protects the mental health and wellbeing of all employees. Likewise, employees should be aware of their rights and feel confident in asserting them if necessary. Ultimately, fostering an inclusive workplace that prioritises mental health benefits everyone involved.

How Pinney Talfourd can help

Please do not hesitate to contact us by telephone to speak with a solicitor from our Employment team, without obligation, or simply fill out our enquiry form and one of our specialist employment lawyers will contact you.