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    11 May 2021

    Employment Law: Mental Health in the Workplace – Q&A

    The coronavirus pandemic has been cited as being responsible for a national increase in mental health conditions and referrals, triggered by social isolation and working at home.  For many, there is now the added degree of anxiety about returning to the workplace.

    A recent report conducted by CIPD focusing on how mental health has been affected by the workforce during the Covid Pandemic indicates that stress-related absence has increased in the last year, with stress, depression, and anxiety relating to 44% of work-related ill health.

    Organisations should be thinking about their business and what areas could be causing stress for employees. It should then be considered how to reduce these issues in their workplace and how best to support staff when they do experience stress.

    Steeles Law Employment team, answers common questions raised in a Law Society #SolicitorChat hosted live #MentalHealth Q&A online, surrounding fears about returning to the workplace, managing mental health in the post-Covid workplace, and what constitutes discrimination in the workplace.

    Q1. What rights do employees have in the workplace when it comes to their mental health?

    Mental health must be treated the same as physical health in the workplace, so if someone is suffering from poor mental health, they cannot be subjected to discrimination as a result.  Employers also have a duty of care to their employee’s, so if they express concern about suffering from mental ill-health, the employer should take any reasonable steps as is necessary to ensure their health does not decline further.  Employees suffering from long term, over 12 months, mental health issue which may have an adverse effect to carry out daily activities are protected under the Equality Act.

    Q2. Can an employee insist on continuing to work from home on the grounds of their mental health?

    It is unlikely an employee can insist on working from home on mental health grounds unless they can show that it would be a reasonable adjustment to their role.  To qualify as a reasonable adjustment, they would also need to show that the mental health issue qualified as a disability and that there was sufficient medical evidence to support this.  If an employee is experiencing mental health problems, they should discuss these with their manager as soon as possible.

    Q3. What counts as discrimination in the workplace?

    Discrimination in the workplace includes direct and indirect discrimination which covers a whole range of negative treatment but must ultimately relate back to, in this case, their mental ill-health. This could be dismissing someone due to their ill health or making decisions in the workplace, which negatively impact people with mental ill-health.

    It also includes harassment and victimisation related to the employee’s mental health.  Harassment is any behaviour that violates your dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  Victimisation would be subjecting an employee to detriment behaviour because they have identified themselves as having suffered from a type of discrimination in the workplace.

    Q4. What can an employee do if they feel they have been discriminated against because of their mental health at work?

    An employee should always raise issues with their employer first, this could be in the form of a formal or informal grievance.  They should ensure that they set out exactly what behaviour they have been subjected to and why they feel it is discriminatory.

    They can also contact ACAS, which is a free conciliatory service that will attempt to mediate between them and the employer.  If this is unsuccessful then they should consult an employment solicitor for advice and who will be able to bring a claim on their behalf.

    Q5. Are employees entitled to sick pay and time off work for mental health issues?

    This depends on the employer’s internal health and sickness policies, as there is no legal right to paid time off for mental ill-health.  However, both physical and mental health issues can be deemed ‘sickness’, if the employee consults their GP and is signed off work, they will likely be able to receive statutory sick pay in the same way they would for any other illness.

    An employee can self-certify for the first 7 days, followed by statutory sick pay can pay up to 28 weeks of paid sick leave if signed off by the doctor.  Employee’s suffering from mental ill-health should always comply with any sickness policies in their place of work.

    If you are struggling with Mental Health in the workplace, or you are an HR manager who needs further resources, please check out the following guides:

    For employers: Returning to the workplace post Covid-19  

    For employees and employers: Coronavirus and mental health at work

    For employees: Get help from a mental health charity – NHS voluntary services

    The Employment team continues to share, legal updates and industry insights to raise awareness and promote a healthier workplace for all employees.  See the news page link below for more article resources:

    22 May 2020 – Top Tips for Better Mental Health at Work

    21 May 2020 – Mental Health in the Workplace

    20 May 2020 – Mental Health Awareness week

    7 October 2019 – Mental Health in the Workplace

    To discuss updates, advice, and best practice for Mental Health in the workplace please contact our employment team at employment@steeleslaw.co.uk or by calling 01603 598000.

    *The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.


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