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Mental Health Awareness Week: A Quick Guide to Employees’ Rights in the Workplace

Mental Health Awareness Week serves as a reminder for everyone to really take a step back from their day to day activities and take a moment to consider their mental health and the impact this has on their lives.

Mental health has always been an important subject and has been further emphasised during the pandemic. As we all have and continue to adjust to living and working in this ‘new normal’, we are navigating tricky and confusing questions about the future. A lot of these questions will inevitably centre around our work lives and with the Government restrictions continuing to ease, you may be wondering how your mental health fits into all of this. What impact does your mental health have on your work? Do you have mental health issues which you are concerned about disclosing to your employer? What support will you have from your employer if you disclose these issues to them? These are all valid concerns which this blog will aim to address.

What rights do you have as an employee in the workplace when it comes to your mental health?

You may be protected under the Equality Act 2010 as mental health conditions can amount to a ‘disability’. Your condition would have to have a substantial long term (12 months or more) adverse effect on your ability to do normal daily activities (for example, you regularly cannot focus on a task, or it takes you longer to do). Medical evidence will usually be required to confirm this.

If you are disabled, you have the right not to be discriminated against (treated less favourably) because of your disability, or because of something arising from your disability (for example if this has led to absence from work, lateness, a drop in your performance etc.), and your employer has a duty to make reasonable adjustments for you in the workplace. The reasonable adjustments will of course depend on your individual circumstances and what you and your employer propose as the best way forward so as to address the difficulties you are facing. For example, this may mean your employer adjusts your working hours and therefore allows you to work flexibly. Employers will usually obtain reports from Occupational Health/your doctors to advise them on what adjustments are needed, but you should also have an input in this.

As an employee, you should be able to have open and honest discussions about your mental health concerns with your employer (whether they amount to disability or not). You can choose to approach your line manager/supervisor or your HR department who should treat such issues with sensitivity and confidentiality.

If you are struggling with mental health problems, do you have to tell your employer?

There may be specific contractual/policy requirements to tell your employer, usually in relation to health and safety issues related to your role, so you should always check this. But generally speaking, you are not obliged to inform your employer if you are struggling with such problems.

However, it may be in your best interests to do so.

Firstly, employers can only be held to account under the Equality Act if they know (or ought reasonably to have known) about your disability.

Secondly, even if Equality Act duties don’t apply to you, your employer can only effectively help and support you if they know about the issues you are facing.

Thirdly, it is important to tell your employer if your work is in any way the cause of your mental health issues (excessive workload, bullying or harassment etc.).

What can you do if you are struggling with mental health conditions in the workplace?

Awareness and understanding of mental health has improved over recent years and employers are generally better at supporting employees than they used to be.

Mental health conditions should be treated with equal importance as physical illnesses by your employer. You should check your workplace handbook to see if there is a mental health champion or trained mental health first-aider who may be a good first port of call and you can discuss your concerns confidentially with them. Many bigger employers also have employee assistance programmes which provide access to a helpline and counselling.

You can also speak to your line manager/supervisor or HR, or another trusted manager, for an informal and candid discussion about your concerns. If you can, you should think about what support you think you need, and how your employer can help so you can include this in your conversation.

Unless you voice your concerns, you may not get the help you need at work which may in turn cause your mental health to deteriorate.

You should only take steps you are comfortable in taking. You should not feel pressured to talk to your line manager unless you feel comfortable in doing so as there is no ‘one size fits all’ in such circumstances. Each case is different and we all deal with our issues differently.

What support will you have from your employer if you tell them you are struggling with your mental health?

Each case is different so there is no single answer to this question.

In terms of what the law says, there is the legal requirement to make reasonable adjustments for disabled employees (see above), and there are various statutory health and safety duties. There is also an over-arching duty of trust and confidence in the employment relationship and a common law duty of care between employer and employee which means that if they do not act reasonably to help and support you they may leave themselves open to a constructive dismissal claim or negligence claim in the most serious cases.

Steps which may be appropriate include putting in place additional help and support at work; referring to occupational health (usually in circumstances of prolonged/persistent sickness absence); referring to counselling/other mental health services; setting up regular meetings to monitor the situation.

What can you do if you feel you have been discriminated against in the workplace because of your mental health?

You can request an informal meeting with your line manager/supervisor to discuss the issues concerning you. Alternatively or further to an informal meeting, you can raise a formal grievance in line with the company policy. You should take the time to familiarise yourself with the company equality and grievance policies to ensure you follow the correct steps in order to raise a grievance.

You can also seek specialist legal advice and, if advisable, speak to ACAS and issue a legal claim against your employer.

Whilst this week is dedicated to raising awareness of this subject, it is important to monitor and invest in your mental health just as you would your physical health, especially when you are faced with stressful life events. The pandemic has affected people in many different ways and so the next few months/years requires mindfulness and empathy from employers as employees adjust to the post-COVID workplace and wider world.

As outlined above, there are various possible routes for an employee to take when dealing with mental health in the workplace and it remains crucial for employers and employees to be able to engage with each other to put the necessary help and support in place, rather than risk deterioration of health and morale. Let’s talk. You may be surprised by how understanding your employer is.