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

It is good practice and makes business sense to show consideration for the mental health of employees, because this will assist with productivity, attendance, staff relationships and retention. It makes sense to look after workplace mental health and well-being to prevent ill-health, as well as to care for employees who unfortunately do become mentally ill.

An employer has a duty to look after, so far as is reasonably practicable, the health, safety, and welfare at work of all their employees, and that will include their mental health and well-being. Risk assessments should include considerations of mental as well as physical health. An employer should not be negligent and has a duty of care to seek to avoid actions or omissions that result in harm to an employee’s mental health. The employer should protect employees who suffer from mental ill-health that is so serious it is legally a ‘disability’, from unlawful discrimination in connection with their work and workplace.

However, there is no absolute right to be kept free of mental ill-health at work or to be kept happy and stress free.

ACAS gives some good general guidance on this here.

2. What counts as discrimination in the workplace?

Only if an employee’s mental health condition is so serious that it amounts to a ‘disability’ will the actions or failures of others be unlawful discrimination. To be a disability, the mental ill-health has to be really serious, in that it has a substantial adverse effect on the life of the employee, is permanent in that it has lasted (sometimes off and on) for at least 12 months, or is expected to do so, and affects their ability to do their normal day-to-day activities. If the mental ill-health does amounts to a disability, then the employee benefits from the very considerable rights and protections given by the Equality Act 2010.

Details of this can be found at the Equality and Human Rights Commission website here.

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

This will depend on the nature of the actions or failure, and who is responsible. If possible, it is almost always better to resolve informally and by discussion. Options are to:

  • Raise it with a manager or the HR Department on an informal basis, by speaking to them or writing to them about it, to see if it can be resolved or put right. An employee can raise a formal complaint under the employer’s Grievance Procedure, which means the employer must investigate, discuss, and give a formal written outcome, with the right to appeal.
  • If that does not work, take the advice of specialist employment lawyer or ring ACAS. Any employer should take such a compliant seriously and want to ensure that they act lawfully and put right what has gone wrong if good practice and legal obligations have not been followed.
  • An Occupational Health assessment may help the employee and the employer to understand the situation and to have an informed discussion about what may be needed.

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

The rights in respect of mental ill-health are almost always the same as for physical illness. An employee who is unfit to work is entitled to be absent from work but should carefully comply with the employer’s sickness reporting if possible. Most employees who are unfit to work will be entitled to self-certify their first week off and then will need a doctor’s Fit Note. There is usually the right to statutory sick pay for up to 28 weeks (low though at £95.85 per week) and there may be the right to contractual sick pay (normal wages or a percentage of them) for a stated period. The employer is entitled to manage absence, whether for mental or physical reasons, though will need to be careful if the mental ill-health fulfils the definition of a ‘disability’ for the Equality Act 2010.

5. How can employers support employees with their mental health, including those working from home?

Besides the general health and safety duty of care, and to avoid an employee being under so much stress that real, long-term, damage is done, the employer does not have a duty to avoid employees being under serious stress. There are many suggestions, for example:

If an employee is working at home, that may be their ‘workplace’ and the employer has a duty to do a risk assessment and so far as is reasonably practicable, look after the employee’s health, safety and welfare at work of all their employees. However, the employee also has a duty to look after themselves. In these strange Covid-19 days, with many employees suddenly working at home, regulators like the Health and Safety Executive are likely to have relative sympathy with employers who are trying to do the right thing.

The Charity MIND is expert at supporting mental health and helping employers to do so. They have developed a three-pronged approach to help employers manage mental health in the workplace by:

  1. Promoting wellbeing for all staff
  2. Tackling the causes of work-related mental health problems
  3. Supporting staff who are experiencing mental health problems

MIND has produced a very useful Guide on this here.