Last Thursday stood as World Mental Health Day and the focus for 2024 was around mental health in the workplace. World Mental Health Day 2024 also coincided with the Government publishing its highly anticipated Employment Rights Bill, with a few days spare in line with its commitment to do so within 100 days of the new Parliament.
Employment Rights Bill
Described as the biggest upgrade to rights at work for a generation, the Government states that the Bill will help “drive growth in the economy and support more people into secure work”. It is well known that many employers do not agree, with their view being that the Bill represents a detrimental and costly impact on businesses.
The overhaul will undoubtedly strengthen employment rights. It includes day 1 unfair dismissal rights, whereas an employee currently requires 2 years’ continuous service to benefit from this protection. The Government will consult on introducing a statutory probation period and has indicated that its preference is for this to last nine months.
Statutory sick pay from day one of illness is to be introduced and a review of bereavement leave will be undertaken. Enhancements to parental and paternity leave are being put forward. The Bill also contains provisions to make flexible working the default from day one by requiring an employer’s refusal of a request to be reasonable, from a list of specified grounds. The “right to switch off” does not appear in the Bill, but it features in the Government’s “Next Steps” paper.
With mental health in mind, the changes could help to improve the financial, physical and mental wellbeing of employees with improvements around sick pay and minimum rights.
While the Government’s plans are still at an early stage, businesses may want to carry out an audit to assess which policies and contractual terms it will need to keep under review and update in due course. Our Employment Team will be following up with wider commentary on the Bill and Government’s plans.
Mental health as a disability:
In any case, employers must understand its current duties and this includes protection around mental health in the workplace, which can be classed as a “disability” under current legislation.
Under the Equality Act 2010, disability is a protected characteristic, meaning that employers and employees cannot discriminate against someone due to being disabled (other protected characteristics are: age, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex and sexual orientation). Employers must also be conscious to make reasonable adjustments in the workplace to ensure that the employee is not at a disadvantage due to their disability.
What can employers do?
Employers know that they have a duty of care towards their employees/workers (and even applicants), and one way they can exercise this duty, especially to those who they know have a disability, is to make reasonable adjustments.
Reasonable adjustments are changes which employers can make to remove or reduce a disadvantage an employee/worker/applicant may have in relation to their disability.
Employers should not just be reactive, but proactive in ensuring that steps are taken to try and prevent mental health problems developing in the first place; or, if an employee is already suffering, then preventing it from deteriorating further.
It can sometimes be difficult, especially if employees/workers/applicants do not recognise their mental health condition as a disability, but employers need to be aware of symptoms or spotting traits which could indicate that there may be mental health issues to consider.
To help them be more proactive, employers could:
· Actively raise awareness about mental health in the workplace, as to normalise the conversations around the same.
· Carrying out risk assessments – this can help employers identify any areas which may cause employers undue stress or worry (for example, workload or working hours)
· Increase training around mental health in the workplace – this can help employees start to spot signs that their colleagues could be struggling, and in turn help create greater transparancy around mental health in the workplace.
· Introduce wellness areas or wellbeing support – Employer Assistance Programmes (“EAPs”) can help employees manage their condition so they can work safely, productively and hopefully more happily.
· Start to consider policies likely to be impacted by the Employment Rights Bill and the enhancements to sick pay and flexible working, which may be linked to helping improve mental health in the workplace.
As touched on at the start of this article, there are also plans for the Government to implement a statutory right to switch off, which may assist with ensuring that employees have certainty on what is expected of them, that they are not being overworked or facing burn out, and can prioritise a work life balance. Of course, we expect carve outs as many employers and businesses will require certain levels of employee engagement outside contracted hours in order to reasonably meet business needs. We will be watching this develop carefully.
ACAS have a helpful employers’ guide, and a general page which sets out about mental health adjustments which can be made: https://www.acas.org.uk/reasonable-adjustments/mental-health-adjustments
There are many resources online to help people deal with mental health conditions; the Mental Health Foundation has useful pages which employers or employees may like to explore: https://www.mentalhealth.org.uk/our-work/public-engagement/world-mental-health-day#paragraph-53091.
If you require further information about the contents of this article and/or would like assistance or advice on the same, please do not hesitate to contact our specialist employment team at employment@curzongreen.co.uk.
If you have been affected by the contents of this article and believe that you need help, there are many specialist organisations who are able to offer support and advice.
Mental Health Foundation | Good mental health for all
Samaritans | Every life lost to suicide is a tragedy | Here to listen