Mental Health: Employers Duty of Care

Emily Addison

Wrote this on, January 18, 2021

mental health duty of care

An employer’s duty of care extends to the mental health and wellbeing of their employees. Here we look at its importance and what employers need to do to ensure they are complying within the workplace.

What Is a ‘Duty of Care’ In Mental Health?

All employers, by common law duty, have an employer’s ‘duty of care’. They have a legal responsibility under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 to do all they reasonably can to support the health, safety, and wellbeing of their employees. For most people, when they hear ‘duty of care’, they think of physical health – making the work environment safe and carrying out risk assessments to prevent employees from hurting themselves at work. However, the employer’s duty of care relates to employee physical AND mental health – thus including the need to minimise the risk of work-related mental health issues as well as injury.

Ask yourself: Is your company doing enough to protect and support the mental health of your employees?

Mental Health: Duty of Care

It is believed that 1 in 4 people in England will experience a mental health problem of some kind each year. But what does this mean for employers’ duty of care?

The Equality Act 2010 makes it unlawful to discriminate against employees because of a physical or mental disability, and a mental health issue can be considered a disability if all of the following apply:

  1. It affects their ability to do their normal day-to-day activities
  2. It lasts at least 12 months (or is expected to)
  3. It has a substantial adverse effect on the life of an employee

This means that common mental health issues such as chronic stress, depression and anxiety can all be classified as a disability and therefore, by common law duty, these individuals must not be discriminated against at work. Employers must therefore make reasonable adjustments to support them in the workplace.

However, it is important to note that an employers’ ‘duty of care’ also includes preventing work-related ill health from occurring. Employers thus need measures in place for all employees, not just those classed as disabled, to support their mental health and wellbeing at work.

mental health duty of care

What Duty of Care Do Employers Have Towards Their Employees?

To fulfill their duty of care (for both physical and mental health), the CIPD suggest that employers should do the following, as a minimum:

  • Publish a health and safety policy if they employ more than five people.
  • Take out and maintain Employers’ Liability Insurance, which covers employees against accidents and ill health.
  • Arrange for the appointment of health and safety executive.
  • Establish a health and safety at work committee if requested by a recognised trade union.
  • Appoint a competent person to evaluate risks and hazards.
  • Arrange periodic risk assessments.
  • Consult with employee health and safety representatives.
  • Inform staff members of risks and steps taken to protect them.
  • Provide adequate safety training to address risks, as appropriate.
  • Comply with the updated provisions concerning health and safety posters and leaflets.
  • Monitor and improve safety arrangements.
  • Adapt work to the individual especially with respect to the design of workplaces.
  • Establish procedures to be followed in the event of serious and imminent danger to persons working in the organisation.
  • Provide comprehensible and relevant health and safety information.

Mental Health Risk Assessment Guidance

As stated above and advised by the HSE, companies with 5 or more employees should carry out, document and review their H&S risk assessment annually as a minimum. This should cover both physical and mental health risks. Organisations must then be able to prove that they have made every effort to mitigate all the risks identified.

We understand that many organisations do not know what to look for when it comes to mental health risks, so we have created an ‘Employee Mental Wellbeing Risk Assessment’ guide, which you can access here.

Typically, the risks to employee mental health at work fall into one of 5 categories:

  1. Job characteristics – e.g. control, decision making, cognitive load, time constraints.
  2. Role characteristics – e.g. role ambiguity, role conflict, role overload, work-life interface.
  3. The work environment – e.g. culture, organisational change, communication, job security.
  4. Relationships – e.g. social support, relationships with colleagues and managers, bullying/harassment.
  5. The individual – e.g. employee age, gender, personality type, values, coping styles.
mental health duty of care

How to Support Employees’ Mental Health at Work

At Everymind at Work, our approach to mental health echoes the requirements of employers’ duty of care. Our work is based on our three wellbeing pillars: promote, provide and protect. If, as an employer, you have initiatives in each of these three pillars, you are likely to be fulfilling your duty of care to your employees or staff member.

Pillar 1: Promote. The promote pillar aims to create a healthy working environment by removing as many workplace stressors as possible. It focuses on the causes of stress and involves reducing the stigma around mental health, increasing awareness and creating a supportive environment for employees to excel.

Pillar 2: Provide. We recognise that not all stressors are in the employers’ control and some individuals may be at higher risk of stress or mental ill-health than others. Therefore, the provide pillar aims to improve individual employee reactions to stress by educating them on effective ways to manage and respond to stressors.

Pillar 3: Protect. The aim of the protect pillar is to minimise the damaging consequences of any stressors by helping individuals to cope more effectively. This stage is reactive, and understands that some individuals may seek specialist assistance with their mental health needs; therefore focusing on problems once they have occurred.

Frequently Asked Questions

What Adjustments Can Be Made at Work For Mental Health?

The Equality Act (2010) outlines an employer’s duty to make ‘reasonable adjustments’ for employees with disabilities. According to the Act, a person is defined as disabled if they have a mental or physical impairment that has a substantial long term (i.e. more than 12 months) effect on their normal day to day activities. Therefore, when employees’ mental health is impacting their ability to complete their work as normal, they should inform their employer so that reasonable adjustments can be made. The employee needs to inform their employer of how their mental health condition impacts their work so they can mutually agree on adjustments that could help.

Some examples of typical workplace adjustments include the following:

  • Change in working hours or patterns, e.g.
    • Flexible start/finish times
    • Working from home
  • Changes to the physical environment, e.g.
    • Minimising workplace noise (maybe offering a private office, room dividers, reducing telephone ringtones etc.)
    • Prove quiet break out spaces
  • Offering support with workload, e.g.
    • Helping employees prioritise
    • Consider job sharing
  • Providing support from others, e.g.
    • Provide a mentor
    • Offer coaching
Businessman and businesswoman with medical mask working in office. Covid-19 time.

Has COVID-19 Changed Employers’ Duty of Care?

From a legal perspective, employer’s duty of care to their employees remains the same – to do all they reasonably can to support the health, safety and wellbeing of their employees. However, the COVID-19 pandemic has had a significant impact on workplace practices and procedures, as well as employee health and wellbeing. Employers would therefore be expected to re-evaluate and continuously update their risk assessments to reflect the changes occurring in the work environment and mitigate identified risks where possible.

As An Employer Looking To Do More, Where Should I Start?

If you feel you already have the basics in place, we suggest reviewing all your wellbeing offerings to consider how they fit into our three wellbeing pillars: promote, provide, and protect (described above). By covering all three pillars, you are supporting your employees at every stage of their wellbeing journey and minimising the risk of employees’ experiencing ill mental health.

You may find our ‘Workplace Wellbeing Ideas That Your Employees Will Love‘ resource useful! To access more content to help you boost employee wellbeing, check out the resources page of our website.

At Everymind, we are passionate about helping organisations develop a holistic wellbeing strategy so that you cover all employee needs, rather than implementing one-off initiatives as a tick box exercise. We appreciate that as a company, improving mental health and wellbeing is just one focus in an ever-changing landscape; so we partner with organisations to use our technology to save you time, resources and money.

Taking the guesswork out of mental health support in the workplace – click here to find out more.

What Are The Employees’ Responsibilities?

Under health and safety law, the primary responsibility of workplace health and safety falls to the employer. However, employees also have a duty of care to take care of their own health and safety and that of others who may be affected by their actions at work. Employees, therefore, need to co-operate with their employer and colleagues to help everyone meet legal requirements. If as an employee you have a health and safety query or are concerned about your own wellbeing at work, you should raise this with a line manager, the HR department, or the organisation’s health and safety representative.

Under the Equality Act, it’s key that you also consider reasonable adjustments for employees experiencing mental ill health so they’re not at a disadvantage at work. Adjustments must be tailored to the individual depending on what they’re experiencing. For example, if an employee is anxious about crowded public transport, the employer might review their start and finish times to help them avoid rush hour. In general, reasonable adjustments target the workplace, equipment or how/when/where tasks and responsibilities are carried out. The NHS have put together some supporting guidance here which may also help.

Employee poster: Ways to invest in your mental health

Can I Sue My Employer for Lack of Duty of Care?

As it is a legal obligation for employers to do all they reasonably can to support the health, safety and wellbeing of their employees, a breach of this obligation may give rise to a personal negligence claim, as well as an action for breach of contract.

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