In addition to statutory health and safety duties, employers are under a general obligation to take reasonable care for the health and safety of employees in the workplace. This means that they have a duty towards people who may have mental health issues, and also towards other employees (if there is a risk of a staff member with a mental health issue doing harm to others).
They also have a duty not to discriminate because of a person’s disability. It is often (but not always) the case that serious mental health issues will constitute a disability. This will often mean making reasonable adjustments to try to support those with mental ill-health.
What should employers be doing to support the mental and physical wellbeing of their employees?
The first thing an employer should do is to be aware of how widespread and misunderstood mental health issues are. Secondly, it is important not to stereotype or make assumptions about mental health. Most people’s assumptions are remarkably ill-informed and often wrong. Understanding mental health issues is important because it will create a more inclusive workplace. By the same token, misunderstanding often leads to unnecessary conflict, disruption and wasted cost.
Some employers have specific mental health policies, which commit to providing formal staff development and support, actively try to make sure the workplace is free of bullying and harassment, ensure that any workplace risk assessments specifically address stress, make sure that workloads are monitored (including through the appraisal process) and offer genuine flexible working opportunities. Larger employers sometimes also provide access to confidential counselling through employee assistance programmes.
Employer culpability in misconduct cases related to mental health issues
One particular area of risk for employers is employees who have had a breakdown that required psychiatric treatment. If the employer is aware of this there is a chance that the individual is treated as 'damaged goods', and therefore there is a significant risk that they will be discriminated against on their return.
Alternatively if their working environment causes them to have a second breakdown, the employer can find itself at the end of a personal injury claim with an employee saying that they cannot work again and seeking a high sum in damages. While not common these circumstances do crop up, particularly in high pressure environments such as investment banking.
Employers may also have to carry out a difficult balancing act where the behaviour of an employee with a mental health issue starts to have an impact on other staff. The courts sometimes place a high threshold on how people with serious mental illnesses should be treated in the workplace.
A decision last year that involved an employee who was suffering from paranoid schizophrenia is a case in point. The individual was on medication when he returned to work, but subsequently (in accordance with his doctor’s advice) stopped taking it. Having stopped taking his drugs, his symptoms returned and he sexually assaulted two female colleagues. Unsurprisingly, the employer decided that the employee was guilty of gross misconduct and dismissed him. However, the court decided that the dismissal was unfair because the employer had not considered whether the employee, given his mental illness, was culpable for his actions.
None of this means that employers cannot dismiss employees who physically assault others, but it does show that if employers are aware of a serious mental health issue in one of their staff they should proceed with care.
Paul Quain is a partner at GQ Employment Law
