The Legal Maze: A Guide to UK Employer Obligations for Mental Health

We have seen a growing number of claims for psychiatric injury from employees who feel overworked and under supported, and those claiming that they have been bullied or harassed at work. This article briefly explores the legal framework applicable to UK employers and suggests some strategies to mitigate the risks.

Mental health problems can occur suddenly, because of a specific event at work, or can build up gradually over time. Workplace triggers can include excessive workload, being discriminated against, bullying, harassment and lack of training or support.  There are many forms of mental health harm, including depression and anxiety. Stress of itself is unlikely to be considered a mental health condition; there is no such thing as a pressure-free job. But if stress is prolonged it can lead to both physical and psychological ill health, including anxiety and depression. In addition to causing mental health problems, issues at work can also aggravate pre-existing conditions, and can bring on symptoms or make their effects worse.

An employer has a legal responsibility to help their employees whether their work is the cause of the mental health issue or aggravating it. This article briefly explores the legal framework applicable to UK employers, which comprises various laws and regulations that form the basis for employers' duty of care towards their employees' mental health and well-being.

Statutory framework

The primary legislation governing workplace health and safety is contained in the Health and Safety at Work Act 1974. This outlines an employer’s general duty to ensure, as far as reasonably practicable, the health, safety and welfare of its employees. This is complemented by the Management of Health and Safety at Work Regulations 1999, which detail employers' specific responsibilities, including conducting risk assessments and implementing appropriate control measures.

Duty of care

Employers also have a general ‘duty of care’. This is a legal obligation to protect those whom its actions may affect. In the employment context, this imposes a requirement on an employer to keep its employees safe and protected from harm. If an employer fails in this duty of care and this leads to a foreseeable workplace injury, the employee can make an accident at work claim against their employer on the basis that they were negligent and may be entitled to compensation for personal injury.

Bullying and harassment

An employee who believes that they have suffered psychiatric injury caused by, for example, bullying in the workplace may claim against their employer for compensation under the Protection from Harassment Act 1997. In this instance the employee needs only to suffer from anxiety and stress. For an employee to succeed, they must demonstrate a course of conduct on at least two occasions which is oppressive and unreasonable, and the conduct towards them must be of an order which would sustain criminal liability. In addition, the harasser must have known, or ought to have known that their behaviour amounts to harassment. The harasser does not need to foresee that their conduct might cause harm, but they ought to know that it is likely to cause alarm or distress.

Discrimination

As Ellie’s article explained yesterday, mental health conditions can be classified as disabilities. The Equality Act 2010 plays a crucial role in protecting employees' mental health, prohibiting discrimination, harassment and victimization on the ground of disability. Employees who suffer a psychiatric workplace injury due to discrimination may pursue a claim through the Employment Tribunal for discrimination compensation.

Strategies

To avoid liability, employers must demonstrate that they took reasonable steps to address mental health issues. In practice this means that appropriate and reasonable health and safety measures should be put in place to prevent employees from becoming ill or injured. Injury and illness includes mental harm.

Work-related mental health issues must be assessed to measure the levels of risk to staff. Where a risk is identified, steps must be taken to remove or reduce it as far as reasonably practicable. Employers must acknowledge and address potential risks and stressors that can impact employees' mental health, such as workplace harassment, excessive workloads, inadequate support and discriminatory practices. Ways that employers can safeguard staff include staff inductions, effective training, regular risk assessments, correct PPE and providing a safe environment which is free from avoidable dangers.

Conclusion

We have seen a growing number of claims for psychiatric injury from employees who feel overworked and under supported, and those claiming that they have been bullied or harassed at work. Employers who neglect their duty of care and disregard their statutory obligations risk legal claims, financial penalties, an unhappy workforce and reputational damage. Good employers recognise and address their duty of care, adopt a proactive approach, promote a positive work environment, provide mental health support and implement policies, practices and procedures to identify and mitigate mental health risks. In doing so, employers fulfil their legal obligations, mitigate their risks and contribute to the creation of a safer, healthier, happier and more productive workforce.

How can we help?

BPE Solicitors can help employers take a proactive approach by having a comprehensive, legally compliant set of policies and procedures. We advise and assist employers that find themselves being challenged and represent employers in employment tribunal claims. Please do get in touch with the BPE Employment Team for further advice, assistance, and any training requirements.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.