We look at some of the legal issues faced in the workplace by people with mental health problems and highlight two government consultations which are seeking views on health in the workplace.
Mind’s Employment Work
The relationship between mental health and work has long been an area of significant interest to Mind. We have a whole department, Workplace Wellbeing, devoted to it which does some fantastic work training employers to promote wellbeing in their organisations, and which runs the Workplace Wellbeing Index, a benchmark for best policy and practice. Paul Farmer, our Chief Executive, co-authored Thriving at Work, an independent review of mental health in the workplace that we wrote about in our December 2017 newsletter. The Legal team here also produces legal guides on issues such as discrimination in the workplace and supports the Policy and Campaigns teams in their ongoing efforts to influence policy in this area.
Some current problems
Mind has recently conducted a survey of over 1700 people, virtually all of whom have lived experience of mental health problems, to ask about their experiences of work and mental health. We are still analysing the responses but some early themes are emerging from this survey and other work we have carried out.
More generous and flexible statutory sick pay (SSP) is needed. Currently you have to be off for three days before you are entitled to SSP and the scheme doesn’t really allow for phased returns to work, which are vital to many people with mental health problems as they build up their capability after a period of absence. We are also hearing people say that SSP is too low and causing financial hardship which has a negative effect on people’s mental health. People are also telling us that their employers have said (wrongly) that they don’t have to pay SSP. The current system of enforcement, which depends on individuals reporting issues to a team in HMRC, clearly isn’t working.
The Equality Act 2010 is not giving people with mental health problems the protection they need in the workplace. This is a complex issue. At the heart of it is the fact that in order to gain protection from discrimination and the right to reasonable adjustments in the workplace have to satisfy the definition of “disability”. You have to have a “physical or mental impairment” that has a “substantial and long-term adverse effect on [your] ability to carry out normal day-to-day activities”.
For a variety of reasons this definition is problematic for people with mental health problems. Despite the Equality Act being specific that mental “impairments” are covered, many people with mental health problems are telling us that they instinctively do not think of themselves as “disabled”. For them disability brings to mind wheelchairs or guide dogs. Some people tell us that having to think of their mental health problem as “long-term” (which means that it has lasted, or is likely to last 12 months or is likely to recur) is not conducive to their recovery. Also many people with fluctuating mental health conditions say that it is not easy to see whether they fit the definition.
We have little doubt that an experienced employment or discrimination lawyer would have no difficulty proving that many of the people who wouldn’t think for one moment that they are “disabled” actually do fit the Equality Act definition. But hardly any of these people have access to a lawyer when they are unwell at work soldiering on through ill health without adjustments that would help them cope, or are off sick threatened with disciplinary proceedings or dismissal.
Another problem with the Equality Act is that two of the most important features (the right to reasonable adjustments and protection from discrimination arising from disability) only arise if the employer knows or ought reasonably to know that the employee has a disability. Research suggests around half of people do not want to disclose their mental health problem to an employer, often because they fear that it will affect their employment relationship in some way. If people don’t disclose their mental health problem then they risk not being protected under the Equality Act.
Another problem with the Equality Act is that it depends on individuals enforcing their own rights. If you feel that you have been discriminated against, then it is up to you to take a case to the employment tribunal. Anyone who has been involved in this process will know that this can be incredibly stressful, even for those who are not unwell. If you win your case, then the tribunal can only make a decision on your case – there is no scope for it to rule on wider issues relating to that employer. If other people have difficulties with that employer then they too will have to bring a case of their own.
We need protection in the workplace that is more easily accessible and understandable to employees and which doesn’t place the entire onus on the affected individual to solve their own problems.
We have the opportunity to make some of these points to government by responding to two consultations that are currently open, but which close in the first week of October. The first is Health is everyone’s business, which is seeking views on changing the law:-
- to encourage employers to support employees with health issues affecting work,
- to reform SSP so it is more flexible and better enforced,
- to improve access to occupational health and other advice and support.
The second consultation is about the creation of a single enforcement body for employment rights. Amongst other things, this consultation will seek views on the enforcement of SSP and on whether there are gaps in the enforcement of discrimination in the workplace.
Mind will be responding to both consultations. We would encourage anyone with views on any of the issues raised either to respond directly to the consultations (details in the links above) or to send your views to Charlotte, who is leading on this work in our Policy and Campaigns team ([email protected]).