Work Related Stress / Harassment – Is the mental health epidemic ‘constructing knowledge’ for employers?
We sat down with Dave Hall, our Senior Claims Technician, to find out about what employer duties are around mental health and to discuss some recent case law.
Could you tell us about the mental health crisis the UK is facing and how that impacts employers?
The Centre for Mental health reported in March 2024 that the total economic and social costs of mental ill health in 2022 was £300 billion, which includes industry costs of just over £100 billion. It is estimated that 1 in 6 people in England report a common mental health problem, such as anxiety and depression, in any given week.
Anxiety and depression remain common reasons for seeking counselling. While more people seeking help is positive, employers need to provide support channels for employees who open up about their mental health. Is this increase in mental health issues facing employees sufficient constructive knowledge for employers to be doing more?
How would you describe constructive knowledge?
Constructive knowledge in the context of mental health and employers refers to a situation where an employer should reasonably have known that an employee has a mental health condition or disability, even if it was not explicitly disclosed by the employee.
Specifically, constructive knowledge arises when there are clear signs or circumstances that would lead a reasonable employer to conclude that an employer to conclude that an employee is struggling with a mental health issue requiring accommodation or support.
When looking at constructive knowledge we should first look at what legal duties an employer has in this area.
You mentioned we should start with legal duties, how can we make sure we’re taking the right steps?
An employer in the UK has a legal duty of care to safeguard the mental health and well-being of their employees. This duty arises from various laws and regulations, including the Health and Safety at Work Act 1974; the Management of Health and Safety at Work Regulations 1999; and the Equality Act 2010. Specifically, employers must take reasonable steps to ensure a safe and mentally healthy work environment by:
- Conducting risk assessments to identify potential stressors and implementing control measures
- Providing adequate support mechanisms, training and implementing mental health policies
- Preventing discrimination, harassment, or unfair treatment related to mental health conditions
- Making reasonable accommodations for employees with mental health disabilities under the Equality Act
Failure to fulfil this duty can result in legal consequences, such as negligence claims, breach of statutory claims, or discrimination claims from affected employees. Employers must adopt a proactive approach to mental well-being, fostering a positive work environment and prioritising employee mental health to avoid legal liabilities and create a healthier, mor productive workforce.
Employers who fail to prioritise and support their employees’ mental health can face significant legal and financial consequences:
- They may be liable for personal injury claims from employees who develop mental health issues such as stress, anxiety or depression due to their work environment or lack of support.
- They risk disability discrimination claims if they treat employees unfairly or fail to make reasonable adjustments for those with mental health disabilities under the Equality Act 2010.
- They could face constructive dismissal or unfair dismissal claims if employees resign or are dismissed due to the employer’s failure to address mental health issues appropriately.
- Lost productivity and increased absenteeism from employees struggling with mental health problems can incur substantial costs for the employer.
- High staff turnover and difficulties attracting talent may arise if the workplace is seen as unsupportive of mental wellbeing.
- Potential legal costs from defending claims, tribunal fees, and compensation payouts can be financially damaging.
When can a liability arise?
Liability can arise where there has been a breach of common law or statutory duties.
The case of Walker v. Northumberland C.C. [QBD 16 Nov 1994] established that the duty of care owed by employers to employees also extends to psychiatric injury and that work-related stress can result from either the character of the work carried out or the volume of work.
In a Court of Appeal case of Sutherland v Hatton, [2002 EWCA Civ 76], the Court stated that there can be no liability unless there was a real risk of breakdown which the employer ought reasonably to have foreseen and which they ought properly to have prevented.
In other words, in order for the employer to be liable, the stress-induced injury must be sufficiently foreseeable to be plainly enough for any reasonable employer to do something about it.
The Court held that the employer was entitled to assume that an employee was able to withstand the normal pressures of the job, and in most cases, to take what the employee said about her own health at face value. It was only if there were indications which would lead to a reasonable employer to realise that there was a problem that a duty to take action would arise.
Bailey v Devon Partnership NHS Trust [2014] the High Court accepted, on the particular facts, that the statutory duty to carry out a risk assessment directly informed the extent of the common law duty of care. This case highlights the importance of employers conducting regular risk assessments to combat potential stress issues facing employees.
This brings the law on “stress” into line with other types of work-place personal injury claim. It is incumbent on employers to ensure that risk assessments include potential psychiatric injury and are suitable and sufficient to deal with the risks which they identify.
Beyond legal risks, prioritising mental health fosters a healthier, more engaged workforce which boosts productivity, retention, and the employer’s reputation. Employers must take a proactive approach by conducting risk assessments, providing support and promoting an open culture around mental health to fulfil their duty of care and avoid these consequences.
So, will the mental health epidemic place greater emphasis on employers?
From a legal point of view and based on current case law, while the existence of a mental health epidemic or a high prevalence of mental health conditions in the general population may not be sufficient to impute constructive knowledge onto an employer, employers still have a duty to make reasonable enquiries and address known mental health issues through support, reasonable adjustments, and non-discrimination.
That said an employer cannot be expected to speculate or assume an employee has a mental health condition without specific evidence pertaining to that individual.
The legal obligation is for the employers to properly address known mental health issues through support, reasonable adjustments, and non-discrimination when made aware of an employee’s condition through disclosure or observable evidence specific to that employee.
Let’s summarise, do you think the rise in mental health is creating constructive knowledge?
The mental health epidemic alone may not create constructive knowledge for employers, but it underscores the importance of having robust policies and training to identify and support employees who may be struggling. Cases may be tested in Court over the next few years to establish whether policies are sufficient, especially in relation to employees with disabilities, and where mental health issues may be considered in relation to the obligations of the Equality Act 2010.
