Employers slack on staff mental health may face disability discrimination claims
Over the past year there has been a concerted public effort to shine a light on the issue of mental health. Is this greater awareness seeping down into industry? We analysed 14 years of data from the Labour Force Survey (a national quarterly survey of 37,000 households) to determine the level of self-reported mental health problems and the sectors in which they are most prevalent.
Our research found that self-reporting of mental health issues has reached a record high in the UK. In 2016/17 there were an estimated 431,000 cases where employees said they believed their job had caused problems for their mental health or made it worse.
Of all the industries surveyed, construction was found to have the lowest level of self-reported work-related mental health cases per 100,000 employees – just 690 in the last year. It is well known that mental health issues are widespread in the construction industry – often brought on by working in dangerous or challenging environments where small mistakes can lead to costly outcomes or, worse, accidents – so we suspect these numbers do not tell the whole story.
A mental health condition is likely to be classed as a disability under the equality act
Many believe the low number is down to culture. Research by AXA PPP in 2015 revealed that employees are more likely to lie to their boss about the reason for being off sick if it is related to mental, rather than physical, health. The result is that employers do not know how their workforce’s mental health is affecting absence rates, and cannot make reasonable adjustments.
Employers in the construction industry have the opportunity to play a fundamental role in changing the status quo. Moreover, managing mental health properly brings benefits, including fewer absences for sickness, increased productivity and better staff morale, as well as helping to attract and retain talent. With the skills shortage worsening, you would expect these issues to be front and centre at construction firms.
It is also vital that employers are aware of their legal obligations and liability with regard to mental health, as part of their duty of care to employees. Without effective management of mental health, employers risk claims for disability discrimination, personal injury (negligence), breach of contract, unfair dismissal, and harassment under the Protection from Harassment Act 1997.
Disability discrimination in particular raises some tricky issues, as a mental health condition is likely to be classed as a disability within the meaning given in the Equality Act 2010. An employee is “disabled” if they have a physical or mental impairment” that has a “substantial and long-term” adverse effect on their ability to carry out day-to-day activities. As such, there are probably more employees who fall within the definition of “disability” than employers expect.
In addition, the Equality Act imposes a positive obligation on an employer to make reasonable adjustments to accommodate an individual’s disability unless the employer did not know, or could not reasonably be expected to know, about that person’s disability.
Liability for disability discrimination such as direct discrimination, discrimination arising from disability or failure to make reasonable adjustments (the average tribunal award in 2015/16 for disability discrimination was £21,000) are all dependent on the employer’s actual or imputed knowledge of the disability, so there must be some evidence the employer knew of the disability. That does not mean that the employer can wilfully ignore potential signs of a disability – an employer can be assumed to have knowledge and should take reasonable steps to find out.
But if an employee is hiding a mental illness from their employer and, as a result, the employer could not have known about it, they will not be expected to make reasonable adjustments – and this reduces the chance of an employee who is suffering mental health problems from resolving them in the short term.
The human touch
Given the benefits of working to reduce mental health issues arising from work and the potential employer liability for getting it wrong, it is imperative that construction industry employers continue to talk about mental health and encourage others to do so. There are some simple steps that employers can take that will go a long way:
- Make mental health a priority and tackle stigma, making the workplace an environment in which employees can be open about their mental health
- Promote a culture of respect and dignity, ensuring staff are informed of how to recognise and respond to mental health problems in others
- Introduce alternatives to improve support of employees in this area, for example an employee assistance programme, or refer to occupational health principles
- Encourage staff to access support when they need it and make sure they know what support is available.
Charles Urquhart is an employment partner at Clyde & Co