Last reviewed 10 January 2018

Mental health is not a straightforward issue for employers. Mental health problems are incredibly common — the Department of Health states that one in four of us will experience mental health issues at some point in our lives — and yet they can go completely undetected by even those who are close to the individual concerned. Employers may be the last people to find out there’s a problem, if they ever find out at all. And yet, the mental health issues of employees can have a very significant impact on the work of the individuals concerned says Gudrun Limbrick.

Of course, mental health issues can be an even harder issue for employees themselves. Trying to cope with mental health issues at work can be a difficult task, particularly when work itself exacerbates the issues. And the decision about whether to tell employers or not is rarely an easy one. Revealing a mental health issue can affect how people treat you in the future — many people have very little understanding about what mental health issues mean and are fearful of dealing with them — and there may be very real concerns about whether having mental health problems will be seen as a weakness that impacts on future promotion or even the length of employment.

This whole issue of how employers and employees deal with an employee’s known mental health issues came to the fore recently in an employment tribunal. The case presented to the tribunal appeared, on first sight, as very straightforward. An employee of TK Maxx got into a, possibly physical, fracas with a customer and TK Maxx severed the employment of the individual on the grounds that it was gross misconduct, after holding a disciplinary hearing which included viewing the CCTV footage of the incident.

However, there was actually far more to this tale. The employee had been with the company for 13 years, in various capacities, at the time of the incident and was employed as a store general manager. In itself, this perhaps suggests that the employer had a measure of confidence in the work of this individual.

A few months before the incident, however, some concerns were raised with the employee about his conduct. The employee revealed that some mental health issues, including depression, were making him quick to anger, and that he was receiving therapy and taking medication. It appears that this was the end of the matter as far as the employers were concerned.

A few months later, the employee got into an altercation with a customer who apparently made an unreasonable complaint in an unreasonable manner, as customers do have a tendency to do. The employee’s response was not, it would seem, appropriate in the eyes of the company. That does not appear to have been the main issue of disagreement in the tribunal. What was under consideration was whether the company had established whether the previously reported mental health issues were ongoing at the time of the incident and whether this was taken into account during the tribunal. The tribunal found the company at fault because it found that the mental health issues were ongoing and had some relevance in the disciplinary process.

What this tribunal did not say was that it can be in any way appropriate for an employee to behave inappropriately to a customer, no matter how far that customer may push and antagonise — that does not appear to have been the area of concern. The issue for other companies to note is how a company should respond when it is made aware that an employee has mental health issues.

When an employer is told about a problem that an employee has, it has a duty to respond appropriately. If an employee said that they were taking medication, for example, which meant that medical advice was that they should not drive, a company would need to ensure that the employee was not being asked to drive as part of their job and thus endanger themselves and others. This would have to remain in place until the employee was able to show that they were now safe to drive. This would appear to be common sense.

The same diligence must be shown by employers in relation to mental health. If an employee says that their mental health issues, for example, mean that they are on a short fuse, the employer has a duty to work with the employee to assess what that means in the workplace and find a way of reducing the potential impact of this. There is also a duty to monitor the situation so that it is clear when there is no longer a potential problem.

There are clear legal reasons for taking this course of action. The Equality Act 2010 references mental impairment as a disability in the same terms as physical disability, ie an issue that is long term and has a substantial adverse effect on day-to-day activities.

It does seem, anecdotally, in the media and through work carried out by Mind, Acas and other organisations, that dialogue about mental health is increasing. This suggests that an increasingly large number of companies are going to have to deal with issues around mental health problems head on. And it is not always going to be easy.

Recently, the CIPD reported that mental health problems can mean that:

  • 37% of people with mental health issues are more likely to get into conflict with colleagues

  • 57% find it more difficult to multitask

  • 80% find it hard to concentrate

  • 62% find it takes longer to achieve anything

  • 50% are potentially impatient with customers or clients.

While we are not suggesting that all people with mental health issues will individually experience all or, indeed, any of the above, the list does make unsettling reading for any company.

It is advisable for any company to get training in mental health issues for its key managers and personnel-related staff. This should cover both creating a supportive environment which encourages employees to be open about their mental health issues, and helping managers to deal with those issues appropriately to protect the employee, other employees, customers and productivity. Talking to a trusted friend about their mental health issues is not easy, it is much more difficult when it is a colleague and at least half an eye has to be kept on the needs of the company itself. Learning how best to do this is essential.

I began this article by saying that mental health issues are not issues that are always straightforward for companies to deal with. And that remains the case. There is certainly no magic wand to help us through this potentially very difficult and legally fraught issue. There is no substitute for equipping managers with decent training and resources to support employees appropriately — the only way of endeavouring to protect the company.

Health Assured

If you need help on mental health and wellbeing issues, Health Assured offers the most comprehensive employee assistance programme (EAP) available today. Health Assured high quality counselling and specialist work–life support is delivered through an in-house team of 60 BACP accredited counsellors, supported by a network over more than 1650 active counsellors across the UK, with access to a further 4500 BACP counsellors. Their specialist service supports 9 million people throughout the UK, handling over 300,000 calls a year.

See www.healthassured.org.