1. Mental Health in the Workplace
Anna Denton-Jones
September 17th 2019

2. navigating employment law
What is mental health?
• Mental health is defined as a state of well-
being in which every individual realises his or
her own potential, can cope with the normal
stresses of life, can work productively and
fruitfully, and is able to make a contribution to
her or his community
World Health Organisation

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• …”the emotional and spiritual resilience which
allows us to enjoy life and survive pain,
disappointment and sadness. It is a positive
sense of well-being and an underlying belief in
our own and others’ dignity and worth”.
Health Education Authority

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Chris O’Sullivan, Mental Health
Foundation
“Mental health is something we all have.
Workplaces that challenge us, support and
develop our sense of purpose, and support
us when things are hard can play a
massive role in protecting and building our
mental health. A mentally healthy
workplace can be built on the back of good
basic line management relationships, clear
HR policy and engagement of staff in
decision making. Prevention is key - we
need to enable everyone to flourish, those
in distress to access help quickly, and
those who have recovered from mental
health problems to stay well and enjoy
successful careers”

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Mental health continuum
No illness. Positive
mental health
No diagnosis but
poor mental health
Diagnosed serious
illness and poor
mental health
Serious diagnosis but
copes well and has
positive mental health

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Definition of a “disability”?
“a physical or mental impairment
which has a substantial or long-
term adverse effect on the person’s
ability to carry out normal day to
day activities”

7. WHEN IS A CONDITION A
DISABILITY?

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Perception of disability: direct
discrimination
• Chief Constable of Norfolk v Coffey
• Fortt v Chief Constable of South Wales Police
• Where someone is treated less favourably
because of inaccurate conclusions drawn
about their ability to do the job, based on
stereotypical assumptions about the
perceived disability, this will amount to direct
discrimination

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Duty to make reasonable
adjustments
Where a provision, criteria or practice or a physical
feature of the premises places a disabled person at a
substantial disadvantage in comparison with a non-
disabled person, the employer is required to make
reasonable adjustments to remove that substantial
disadvantage. The employer needs to know or be
reasonably expected to know about the disability
before this duty kicks in.

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Discrimination arising from
a disability; section 15 Equality
Act 2010
A person discriminates against a disabled person if they
treat the disabled person unfavourably because of
something arising in consequence of the disability and
the treatment cannot be shown to be a proportionate
means of achieving a legitimate aim.

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Undiagnosed issues
• Illustrate to OH the issues you are
experiencing in the workplace and seek their
advice:
– Pattern of absence or attendance issues
– Lack of clarity about whether there is an
underlying condition
– Lack of clarity therefore about what support
needed

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Am I expected to accept
more absence?
• If somebody has a disability that is likely to
involve a ‘greater than normal’ absence level,
you need to adjust your triggers for when
you would normally take action under your
policy ie:- it takes longer to go through the
process.
• The employee is not immune from process.

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Bray v London Borough of
Camden
"The logical consequences of …argument that an
employer should exclude from consideration the
entire part of an employee's sickness absence
related to disability would be that an employee
could be absent …without the employer being in
a position to take any action in relation to that
absence. ….as a matter of good sense,….if any
such absences were to fall outside the sickness
policy it would generate enormous ill-feeling
and be a potential for unauthorised
absenteeism."

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Knowledge of a disability
Employers need to take care as it is not just
what the employee tells them directly – they are
expected to know what their Occupational
Health Advisers know and to interpret the facts
before them.

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What if the employee is hiding
their disability?
• A Limited v Z

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Am I expected to put up with
unacceptable behaviours?
• You are not expected to put up with
unacceptable behaviours

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Moving feast
• A known disabled employee’s needs change
during their employment
– Diarise annual reviews
– Revise adjustments made

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Burden of proof in disability cases
• Employee argues set of facts which they say
suggests discrimination took place
• You have to show that disability discrimination
was not the reason for any treatment they
received or justify it
• Paper-trail is how you do this

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When a condition is disclosed
• Avoid making assumptions
• Confidentiality
• Develop a Wellness Recovery Action Plan
 Encourage dialogue
 Make adjustments
• Agree how contact will work when absence occurs
• Training for managers in how to conduct RTW
interview?

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Get medical advice
• GP, Specialist, Occupational Health
• Employee consent required under the Access
to Medical Reports Act 1988 where the medic
is responsible for the clinical care of the
employee
• The quality of the reports you get back will
reflect the quality of information you provide

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Discussion
• What is your organisation doing to support
the workforce’s health and wellbeing that it
wasn’t a year ago?

22. WHAT CAN WE DO TO CHANGE
THINGS?

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• HR practitioners have the power to help their
organisation focus on abilities, not disabilities,
and present disability as a natural part of
diversity. Jake Young, Research Associate CIPD

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Ten steps we can take: 1. Holiday

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Ten steps we can take: 2. Flexible
Working

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Ten steps we can take: 3. Ask
sensible questions
• What can I do to help?
• What do you need?
• What support can HR give you?

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Ten steps we can take: 4 Routine
practice – all processes
• Ask employees if they need any adjustments
– NOT JUST RECRUITMENT

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Ten steps we can take: 5 – Access
to Work Funding for adjustments
• Don’t forget this source of support and advice

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Ten steps we can take: 6 – Don’t
make assumptions
• Ask the person about how their disability
affects them (nor not) and listen to what they
say

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Ten steps we can take: 7 –
Confidentiality/Data Protection –
give it priority
• Limit who knows what eg:- senior managers
don’t need to know details, payroll to process
sick pay doesn’t need to see the reason for
sickness on fit note
• Do not tell colleagues/discuss it in front of
colleagues (you will have a harassment
complaint)

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Ten steps we can take: 8 – accept
that we employ disabled people
• Instead of focusing on ‘how do we get rid of
this person’ – ‘how do we keep on working
with this person?’
• Change our mindset

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Ten steps we can take: 9 – Training
for line managers
• Research conducted by Opinium in
partnership with the University of Warwick,
found that managers wanted more support
from their organisations when it came to
helping staff with mental health problems.

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Ten steps we can take: 10 – Allow
people to have mental health
issues
• Create a workplace culture where we all have
good and bad days and all have ups and
downs and sometimes all need time out and
rest and all need time off to recover

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Sources of further information
• www.mentalhealth.org.uk
• www.mind.org.uk
• www.callhelpline.org.uk
• www.journeys.online.org.uk
• www.depressionalliance.org
• www.thecalmzone.net
• www.rethink.org
• www.platform.uk

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Sources of further information
• www.nomorepanic.co.uk
• www.nopanic.org.uk
• www.ocdaction.org.uk
• www.anxietycare.org.uk
• www.anxietyalliance.org.uk
• www.Dan247.org.uk
• www.alcoholics-anonymous.org.uk
• www.talktofrank.com
• www.mhfa-wales.org

37. Contact us:
adenton@refreshinglawltd.co.uk
Phone 02920 533393 or 077977 545480
www.refreshinglawltd.co.uk