Mental Ill Health Briefing

How to thrive at work – are you facing a ‘mental health challenge’ in your workplace?

This week ‘Thriving at Work’, an independent report commissioned by the Prime Minister, has been published. Co-authored by Paul Farmer (Chief Executive of mental health charity Mind) and Dennis Stevenson (former HBOS chair), the report sends a clear message to employers that a change in attitude is needed. Specifically, it calls on the Government to adopt 40 recommendations – including legislative reform.

What does the report say?

Claiming that the UK is ‘facing a mental health challenge at work, that is much larger than we had thought,’ the report points out that:

  • up to 300,000 people with long-term mental health issues leave their jobs every year (it is noted, however, that this statistic could include the same individual twice if they move around employment);
  • around 15% of employees have symptoms of an existing mental health condition; and
  • the UK economy spends around to £99bn every year due to employees that are ‘less productive, less effective, or off sick’ because of poor mental health.

Paul Farmer highlights the ‘crucial’ role that employers must play, with the report alluding to the fact that ’employers are perhaps able to have the greatest impact and scope to make an impact’, being in the unique position of being able to ‘create a positive and supportive workplace culture themselves free from stigma’.

As well as this, the report recommends that employers adopt what are described as ‘mental health core standards’ – a framework for a set of actions which can be implemented across all workplaces ‘quickly’ and at little or no cost. These mental health core standards emphasise the need for:

  • producing, implementing and communicating a mental health at work plan;
  • developing mental health awareness among employees;
  • encouraging open conversations about mental health and the support available;
  • ensuring employees have a healthy work-life balance and opportunities for development;
  • promoting effective people management through line managers and supervisors; and
  • routinely monitoring employee mental health and wellbeing.

Does the size of the company matter?

In short, no… but the report recommends an enhanced set of standards for employers with over 500 employees, as well as greater transparency and tailored in-house mental health support from employers who ‘can and should do more to lead the way.’

It also asks the Government to consider amending legislation and guidance, such as the Companies Act. This would encourage employers to report on workplace mental health through channels such as their website.

Employers will also want to keep a keen eye on recommendations in the report for the government to consider legislative change ‘to enhance protections for employees with mental health conditions, particularly fluctuating mental health conditions’ and calls for clarification of the role of employers in providing reasonable adjustments. The report does not limit the potential for legislative reform, recommending that the government considers ‘what more it can do to require employer compliance with existing equalities and employment laws’.

What about the self-employed?

There’s no denying that the working world is getting ever more flexible. That’s why it’s good to see this report consider the changing nature of many workplaces, with many people now employed by the so-called ‘gig economy.’ Because of this, the authors of the report have stated that they have sought to ensure that their recommendations can be adopted by all companies – regardless of the size or type of workplace. Similarly, they have considered the findings of the recent Taylor Review of Modern Working Practices, which states that there should be ‘good work’ for all. For online platforms with large reach amongst self-employed workers, the report recommends that they make connections with NHS-approved health and wellbeing support to provide advice that can be accessed by those working through their technology.

What else does the report recommend?

Whilst some of the report’s 40 recommendations are focused on the public sector, the vast majority is likely impact on all UK businesses in some way. In addition to those mentioned above, other recommendations include:

  • specific recommendations for industry groups, professional bodies, insurers and workplace regulators to all support employers on tackling workplace mental health;
  • calls on the Equality and Human Rights Commission to take a more proactive role in monitoring and taking action against employers that discriminate against individuals on mental health grounds, and the Health and Safety Executive to revise its guidance in order to raise employer awareness of their duty to assess and manage work-related mental ill-health;
  • the formation of a mental health online information portal, co-produced by the voluntary, public and private sectors, to promote best practice and enable employers of all sizes to implement the mental health core and enhanced standards;
  • calls on the government to align the fragmented occupational health and practical support available currently from Access to Work, the Fit for Work Service and other NHS services to create an integrated in-work support service to better support the needs of those with mental illness, and other physical health conditions and disabilities; as well as protecting and promoting the current tax relief for employers to invest in the mental health of employees whilst exploring alternatives to potentially incentivise employers to implement the mental health core standards; and
  • a recommendation for public bodies to encourage their suppliers to implement the mental health core standards.

What’s next?

Whilst the report is simply making ‘recommendations’ at present, employers need to start taking action. The Prime Minister has made it clear that mental health is a priority on her agenda and the government is said to be considering the legislative changes suggested.

Aside from the report, mental health is a rising issue  – and one that employers need to tackle right now. Recently, ACAS issued guidance on mental health in the workplace for employers and, as the Prime Minister has commented, ‘it is only by making this an everyday concern for everyone that we change the way we see mental illness, so that striving to improve your mental health – whether at work or at home – is seen as just as positive as improving our physical well-being’.

If you’re affected by any of the issues raised above, you can contact Alison for expert advice here.

Please follow and like us:

Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.

Background

Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

Please follow and like us:

Update – Parental Bereavement Leave

On 19 July 2017 the Parental Bereavement (Pay and Leave) Bill was introduced to Parliament. The Bill is expected to have a second reading in October with the hope that it will become law in 2018.

Summary

  • This aims to establish a new right for employed parents to paid leave to grieve on the death of their child.
  • It is likely that the amount of leave will be at least two weeks and attract the same rate of pay as other types of family leave such as maternity, adoption paternity and shared parental leave. This is currently the lower of 90% of an employee’s gross weekly earnings and £140.98 per week.
  • At present (except in relation to stillbirth or miscarriages in respect of which maternity or paternity leave may still apply), the law only allows for “reasonable” unpaid time off to deal with an emergency relating to dependants, including his or her death, and it is down to each employer to determine what is ”reasonable” in the circumstances.

ACAS has published a good practice guide on Dealing with Bereavement in the Workplace (available here).

Please follow and like us:

Floodgates opened to historic claims?

The Employment Appeal Tribunal has ruled that an employee who has submitted a claim six years late is allowed to proceed with their case. Does this mean you need to worry about other historic claims that you thought were safe?

Tribunal claims are restricted to tight time limits, partly to prevent employers from the constant fear of legal action forever. For example, if an employee wishes to contest an unfair dismissal it must be done within three months of their employment’s termination. But, since the Employment Appeal Tribunal’s (EAT) ruling in the Higgins v Home Office 2015 case, it’s been suggested that previously time-barred claims should be allowed to proceed. Is this really the case, and should you be panicking?

But before we decide this, let’s first take a look at the details of the actual case. Miss Higgins was employed by the Home Office from 2003 to December 2007, and during this period it is known that she had suffered with acute psychosis. Miss Higgins had decided to resign at one point but, having done this under the influence of her mental illness, the Home Office had allowed her to withdraw her resignation. However Miss Higgins later repeated her resignation in November 2007, and this time the Home Office stuck to it. This is where it all kicked off.

Miss Higgins considered her employer’s decision to be constructive dismissal and found solicitors to pursue a tribunal claim on her behalf. But as this commenced her mental health worsened and she was unable to make her case by February 2008 – the deadline for lodging a tribunal claim. Finally, in January 2014, she decided to file a constructive dismissal claim. Her application, however, was somewhat vague and it was hard to distinguish was Miss Higgins actually wanted.

The tribunal found this application “an abuse of process” due to how late the claim had been made, but Miss Higgins made another application to be reconsidered. This time she provided details of her mental health condition and a letter from a psychiatrist, which stated she had not been mentally fit enough to pursue a legal case since her dismissal 6 years ago. However this was refused again, and Miss Higgins appealed to the EAT – which ruled that her case was able to proceed.

The amount of evidence provided meant the tribunal “appreciated the potential severity and impact” of Miss Higgin’s mental illness and why it had meant she was unable to go through with her case within the normal time limit. All of this means that you don’t need to panic about a floodgate of historic claims opening. The circumstances of this case are highly unusual, and the EAT felt that it was possible that Miss Higgins had lacked capacity under the Mental Capacity Act 2005 between her resignation and 2014. As this would prevent her from legally issuing a claim or instructing lawyers during this period, she has been allowed to pursue it now.

While the EAT’s ruling means Miss Higgins can now commence with her case, it’s important to remember that this does not mean she was constructively dismissed. All the ruling means is that she is allowed to pursue her case and may, ultimately, fail.

For advice on this or any other HR issue please contact Alison.

 

Please follow and like us:

Compensation awarded for stress caused by rushed suspension

This case addresses the issue of stress and personal injury within the context of suspension from work and/or disciplinary proceedings. In this instance the claimant was employed by the Foreign & Commonwealth Office (FCO) as the UK High Commissioner to Belize. He was withdrawn from his post and suspended, pending a disciplinary hearing, following allegations of sexual misconduct made against him. During this suspension and a lengthy disciplinary process (as a result of which the allegations were dismissed), the claimant became ill with depression. He never returned to work and eventually retired. At this point he brought

High Court proceedings against the FCO for compensation for personal injury, alleging that stress resulting from the unfair process had caused his depression.

The Court of Appeal supported the ruling by the High Court that the FCO owed the claimant a duty of “fair treatment”. They found that this duty was breached when the claimant was withdrawn from post and suspended without any inquiries into the allegations and without their having put the allegations to him. The Court said the FCO should have made “some preliminary investigation” and exercised “some critical judgement” of the allegations made before suspending the claimant.

However, the Court of Appeal ruled that the claimant’s psychiatric injury was not a reasonably foreseeable consequence of withdrawing him from post and suspending him. He was an apparently robust employee, with no history of any psychiatric ill health. Therefore, the court ruled that although the FCO’s neglect of it’s duty of care was in breach of the claimant’s contract the claimant was not entitled to compensation for the psychiatric injury that he had suffered.

What do you need to do as employers?

It is easy to view suspension as a neutral act and it is, indeed, common practice to respond to such allegations as these by suspending the employees concerned as soon as a complaint is made, quite irrespective of the likelihood of the complaint being established. However, recent court rulings show that a change is taking place, with a need to protect the employee (and act on the employer’s duty of care) holding greater importance).

The test for liability for personal injury is whether the injury suffered is a reasonably foreseeable result of the breach of the duty of care. Whilst this was not found to be the case with this particular claimant, it is likely that there will be a case where an illness such as this will be found to have legitimately flowed from an employer’s conduct of a disciplinary process. As a result employers should bear this in mind when considering how to handle suspension and disciplinary investigations.

For advice on this and other relevant matters please contact Alison.

Please follow and like us:

Mental Ill Health Briefing

In a nutshell

 

Recent data has revealed that there has been a steep increase in the past two years in the number of staff turning to employee assistance programmes (EAPs) for help with mental health issues.

 

What are the numbers?

 

Validium, an EAP provider has seen a 70% increase in staff using EAP services between 2012 and 2012. Within this 60% of all contact from employees concerning personal issues. The number of calls relating to divorce and separations remained stable while problems with relationships peaked in 2011 before dipping again in 2012. The company claims that the number of calls, in 2012, related to mental health issues has risen to the same level as calls on relationship problems, much more than in 2010.

 

What does this suggest?

 

The executive director at Validium, Anne Payne, says that the increase in calls is evidence of the problems caused by the recession. A normal sense of insecurity or added pressures has turned into a more serious mental health issue over time. She states “We’ve seen how employees appreciate having an expert to speak with, someone unconnected with work or home, and that support is being provided.”

 

A separate study by Bupa has revealed that 26% of small business owners don’t feel confident about being able to recognise and address ill health, stress or depression among their staff. It is important to address these issues early and seek expert advice on what action to take and support to give. 

 

Please follow and like us:

Get our email updates

* = required field
Follow us on LinkedIn
Follow us on Twitter
+1 on Google+