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Mental health at work and employment law

01 Mar 2017

Businessman working from a desk, studying employment lawIt is vital that an employer understand the legal implications of an issue surrounding mental health at work. Here we outline some of the key areas to consider

Which policies should you have in place?

Every employer needs to understand that mental health is treated in exactly the same way as physical health.

Therefore, employers should consider the following points as laid out in the Practical Law Database if an issue relating to mental health is raised at work.

  • Entitlement to statutory and/or contractual sick pay, including deciding whether qualifying conditions have been met. Many employers will have sickness policies, which set out relevant qualifying conditions.
  • The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report.
  • Whether the incapacity has been caused by workplace factors such as stress, bullying or an accident at work.
  • Does the absence coincide with any periods of holiday?
  • Whether the absence is related to a disability and whether any reasonable adjustments may need to be made.
  • Whether the level or frequency of absence is a cause for concern: for example, a stress at work problem, or malingering?
  • Whether dismissal is appropriate and, if so, ensuring a fair process is followed.
  • Considering whether the employee may be eligible for permanent health insurance or ill-health retirement.

Under the Employee Relations Act 1996, employers must inform employees of their sickness rights. However, there is no entitlement to full pay unless it is specified in their employment contract although the employee may be able to receive Statutory Sickness Pay.

The Equality Act 2010 protects disabled people from unfair treatment. This includes many people with a mental illness. You can have the protection of the Equalities Act if you fulfil all four criteria below:

  • Do I have a mental health impairment?
  • Is it long term (meaning lasting more than 12 months or likely to do so)?
  • Does it affect my day-to-day living if I discount my treatment or medication?
  • Is the effect adverse?

Best practice for employers – further reading

There is now an increasing awareness of mental health issues in the workplace. A number of ‘Best Practice Guides’ are now available.

Mental health toolkit for employers

This includes an eight-point check list for employers to ensure they are embedding wellbeing into organisation culture as well as a presentation including facts and stats that you can use to open the conversation for your organisation.

Leading on Mental Wellbeing: transforming the role of line managers

This report highlights the evidence for empowering line managers to make a greater positive impact on employee wellbeing. It contains insight from industry experts, advice on how organisations can take action and features case studies of effective support programmes.

Managing Mental Health in the Workplace

This module looks at how to encourage good mental health – by safeguarding staff wellbeing, addressing problems before they become severe, and supporting staff when issues do emerge.

Mental health in the workplace

The IoD is committed to raising awareness of mental health issues in the workplace, with a particular focus on opening up the conversation for small and medium-sized businesses. We have created a hub packed full of helpful advice, best practice and useful resources, as well as shared experiences from business leaders.

Visit our mental health in the workplace hub

Get involved in the conversation  or use the hashtag

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