October 10th, 2020 marks World Mental Health Day, raising awareness of mental health issues around the world and what can be done to support those who need it. But what rights do employees have in the workplace when it comes to their mental health? Fiona McAllister discussed this and more live on Twitter this morning during #SolicitorChat.
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What rights do employees have in the workplace when it comes to their mental health?
There is no distinction between physical and mental health in the workplace. An employer has a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all their employees which includes their mental health.
What counts as discrimination in the workplace?
If an employee’s mental health is such that they qualify as suffering from a disability they can be discriminated against
- directly by being treated less favourably than others because of mental health disability;
- unfavourably because of something arising in consequence of their disability without objective justification;
- indirectly by having a provision, criterion or practice applied that disadvantages job applicants or employees with a shared disability without objective justification;
- by an employer failing to comply with its duty to make reasonable adjustments where they are placed at a substantial disadvantage due to their disability;
- they can be subjected to harassment related to their disability or
- victimised because they have made or intend to make a disability discrimination complaint under the Equality Act 2010.
What can an employee do if they feel they’ve been discriminated against because of their mental health at work?
Looking for an opportunity to resolve the issues informally would normally be the first course of action but as with any discrimination, if that cannot be resolve and employee can raise a grievance in relation to their treatment. If the matter is more serious and depending on the circumstances, they may have a claim against their employer for breach of contract and constructive dismissal and in very serious cases of long term damage to health, a personal injury claim.
Are employees entitled to sick pay and time off work for mental health issues?
The same rules apply to absence relating to mental health as physical health so if an employee is incapable (or are deemed incapable by regulations) by reason of disablement, from doing work which they could reasonably be expected to perform under the contract then they qualify for SSP just as they would with any physical injury or ailment.
The scheme entitles qualifying employees who are absent from work due to incapacity to receive a minimum weekly SSP payment for up to 28 weeks in any period of incapacity for work (or series of linked periods of incapacity).
If the employee benefits from contractual sick pay, then it will also apply to any period of absence relating to mental illness as it would for physical illness.
How can employers support employees with their mental health, including those working from home?
There is an HSE’s workbook Tackling Work-Related Stress which can be a point of reference for employers as with the Acas have a guide on promoting positive mental health at work.
A first step is to improve mental health awareness within the business.
Other steps include:
- creating a workplace culture where staff feel able to talk about their mental health
- be seen to support staff who are experiencing mental ill health
- produce, implement and communicate a mental health at work plan
- develop mental health awareness among employees
- provide employees with good working conditions and ensure they have a healthy work life balance
- consider appointing Mental health champions and Mental health first aiders
- promote effective people management through line managers and supervisors.
- regularly to talk to employees and identify and understand risk factors.
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