Mental Health & duty of care for employers

Next in our series of Equality Diversity and Inclusion in the workplace, we take a look at mental health. 

The events of the past few years, and current cost of living crisis, is placing a large burden on many individuals, resulting in a variety of mental health issues. Society has progressed hugely over the years, and awareness and confidence to talk about mental health issues has risen, albeit there is still work to do on battling misconceptions and prejudice. 

In this article, we look at how mental health in the workplace should be managed,  what steps employers can take to identify mental health conditions, and what support can be put in place – with a focus on situations where individuals have not disclosed any issues, and may in fact, not even recognise they are suffering from poor mental health.

Acute Mental Health Issues

We have seen a rise in situations involving employees who experience an acute mental health episode (either with or without knowledge of a pre-existing mental health condition). This situation can prove incredibly tricky for employers to manage, as the individual will often not recognise that their thoughts and behaviours are as a direct result of the episode, and can sometimes be illogical, irrational and extreme in their response to efforts intended to support them.

In some situations, this may not impact the employee in the workplace at all in terms of performance and conduct (and may solely relate to their life outside of work), however (and much more commonly) in other situations, there may be behaviours exhibited in the workplace which raise concerns with managers and HR.

A knee-jerk reaction for HR professionals and managers to avoid, is automatically proceeding down the route that these behaviours warrant formal disciplinary or performance action. Examples of the type of behaviour that may give rise to concerns include:

• Unusual or irrational grievances being raised;
• Speaking to and acting towards colleagues in manners that are not typical for that individual or are completely or in ways that are outside social norms;
• Poor time keeping where previously an individual may have been punctual; and
• A sudden drop in performance;
• Other unusual, out of character behaviour.

Duty of Care

These behaviours may be so extreme that an employer immediately realises there is a mental health issue, but if an employee has not disclosed any problems with their mental health, the employer may be stuck as to what course of action to take in order to address the behaviour. 

If the behaviour is aimed towards other employees, and it is extreme, then individuals on the receiving end may instinctively react by saying that they cannot possibly continue to work with the individual – leading to a potential suspension and disciplinary process. 

As a first step - do not be afraid to sit down with that individual and ask them if they are ok! If alarm bells are ringing over potential mental health conditions, employers should conduct a well-being check with the employee. What comes out of this discussion will often help dictate which course of action or procedure to instigate moving forwards. It may be that they disclose that they are suffering with their mental health at present, or what they divulge may give you concerns about their or other employees’ safety. In some cases, it may simply be that you have no option but to proceed through the relevant standard procedures.

Remember that you also owe a duty of care to the individuals who may be on the receiving end of behaviour from an individual suffering from poor mental health. Everyone affected requires support in these situations, and check that colleagues are ok. If you have health support lines, and mental health first aiders, refer all employees involved to these resources so they can reach out and utilise them if they wish.

What if the individual does not acknowledge that they are suffering an acute mental health episode?

You should remember that ultimately, you are an individual’s employer, not their doctor, family or therapist. You also cannot simply remove an individual from a workplace or suspend them because you suspect they are suffering an acute mental health episode. In order to do this you would need to have reasonable grounds to suspect they will (for example) cause harm to themselves or others in the workplace, or will cause the business damage (because of negligence or mistakes – actual, not perceived potential mistakes).

You owe a duty of care to all employees. If having had a supportive conversation with the individual to see if there are any issues in their life hasn’t produced any information regarding medical issues, you may at this stage, have no option but to proceed through the relevant internal procedure. This might be a grievance the individual has submitted, a disciplinary or performance improvement procedure.

Throughout these procedures however, you should consider making adjustments to so as to take into account the potential mental health issues, for example:

• Allowing the employee paid time off while a grievance is being investigated (this can be beneficial to all parties if the employee feels uncomfortable around them, and also to protect employees from any further allegations if the grievance is unfounded and due to poor mental health);
• Allowing family members to attend meetings as a companion in order to provide the individual with further support (we would however always recommend that the individual provides the name of the companion in advance so you can assess their suitability); and
• Extending deadlines for submission of evidence (balancing this with other individuals’ wellbeing – e.g. if the evidence relates to a grievance against another individual).

Given the individual nature of mental health, how each situation should be approached may differ. In some extreme situations, it may also be reasonable to contact the employee’s emergency contact – for example if their behaviour is so extreme you are concerned for their health and safety. This is likely to be rare, and you should always have regard to your responsibilities concerning data protection and privacy rights.

Things to remember!

• You are the individual’s employer, not their doctor or therapist. You should be careful not to diagnose an individual, but be mindful of behaviour that raises concerns and give the individual the chance to divulge any health conditions or mitigation for their actions. If they are divulged, appropriate support should be sought via occupational health etc.
• If an employee does not recognise that they might have a mental health issue, you should consider whether they will consent to an occupational health assessment. However, bear in mind that you can’t necessarily force this on them, and should be cautious and sensitive to approaching situations of denial.
• You owe a duty of care to all employees, not just the one suffering with mental health issues – the duty of care to any individuals involved must be balanced throughout any procedure. Simply because you suspect someone may be suffering from poor mental health, this does not mean that all actions should be automatically excused. E.g. unfounded grievances without any mitigating medical information may have to be treated as vexatious if other avenues of resolution are not successful (particularly if repeat grievances are raised).
• Ensure that you continue checking in with your employees throughout any procedure you are following – the duty of care is ongoing, not solely at the outset.
• Be adaptable – mitigation may be raised at any stage and, if mental health is a factor, it is likely you will need to deal with further issues/concerns throughout any process – be mindful to adapt your communication to ensure a fair procedure is being followed, but to support the individual – standard wording of letters may not always be appropriate and may cause a reactionary response.  

Ultimately as an employer, if you are supportive towards all employees, and follow fair procedures throughout, you are likely to have discharged your duty as an employer – and to have created a supportive, inclusive working environment where your workforce feels cared for and valued.

Next month, we will examine gender identity and the workplace.