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November 7, 2017

Legal Issues – Mental Health at Work

In July 2017 we released an update on the Taylor Review, in which Matthew Taylor and his team outlined their recommendations to the government in relation to working practices in the UK.

On the heels of that review, we now have ‘Thriving at Work’, a review commissioned by the government into mental health at work and how employers and the government could make improvements in that area. The review was written by Paul Farmer, Chief Executive of MIND (a mental health charity) and Lord Stevenson, former Chairman of HBOS, who himself has struggled with mental ill health.

It is not difficult to understand why the report was commissioned. The report estimates that the cost of poor mental health to the UK economy is between £74 billion and £99 billion every year, with up to £27 billion being borne by the government and up to £42 billion by employers. A particular point of note from the report is that over half of the cost to employers is from ‘presenteeism’ (as opposed to absenteeism), meaning where employees are coming to work but being less productive due to poor mental health.

Much like the Taylor Review, this report has made a number of recommendations as to how mental health in the workplace could be improved. Some of those recommendations are aimed at the public sector (primarily the NHS and education), with others focused on what the government and individual employers can do.

In relation to the latter, the report outlines six ‘mental health core standards’, which the authors believe can (and should) be introduced by all employers, irrespective of size. They are:

  1. Produce, implement and communicate a mental health at work plan, which promotes good mental health and details support available for those who need it.
  2. Develop mental health awareness among employees by making information, tools and support accessible.
  3. Encourage open conversations about mental health and the support available when employees are struggling, both during recruitment and throughout employment.
  4. Provide employees with good working conditions and ensure that they have a healthy work / life balance and opportunities for development.
  5. Promote effective people management to ensure that all employees can have a regular conversation with their manager.
  6. Routinely monitor employee mental health and wellbeing by talking to employees and understanding risk factors.

In addition to the above, the report also recommends four ‘enhanced standards’, which it states should apply to employers with more than 500 employees. They are to increase transparency by having a clear approach to mental health, demonstrate accountability by nominating a senior manager with responsibility for mental health issues, improve disclosure to encourage openness about such issues and ensure the provision of in-house mental health support and the signposting to external help to those who need it.

In a nod to the Taylor Review, the report acknowledges that the nature of work is changing, and encourages employers to consider all those who work for them when implementing the above standards, including those on part-time or shift patterns.

The report also calls on the government to introduce measures to improve workplace mental health, such as coalescing Access to Work, Fit for Work and NHS services into an integrated service. It also recommends that the government promotes tax relief for employers who invest in the mental health of their employees and that it considers other ways in which employers could be incentivised to do so.

In terms of legislation, the report suggests enhanced protections for employees suffering mental health difficulties, which could strengthen those already given under disability discrimination legislation. It also recommends a ‘flexible’ model of Statutory Sick Pay (SSP) to support employees to earn more during a phased return to work, i.e. allowing SSP to be earned alongside pro-rata wages.

As with the Taylor Review, it remains to be seen how many (if any) of the recommendations will actually come to fruition. The difficulty with Thriving at Work is that many of the recommendations are aimed at employers, who may feel that they don’t have the time, resources or knowledge to implement what is being asked for.

The government is arguably better able to play its part, but again it is not yet clear what steps it will take in this area, and its attention is already being pulled in multiple directions by internal difficulties, Brexit and its myriad other problems.

We will of course continue to release updates when more becomes known. In the meantime, if you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

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