There is a huge amount of legislation that sets out employers obligations. Debra Gers from leading law firm 
Blake Morgan gives us the all important employee law perspective on workplace wellbeing.
Employers, quite rightly, are under many obligations to ensure the health, safety and well-being of their staff. However, many employers now recognise the business case for doing so as well.
There is a huge amount of legislation setting out employers’ obligations. The Health and Safety at Work Act 1974, for example, provides that employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees. Other regulations require employers to carry out risk assessments to identify potential risk factors and to take reasonable steps to prevent harm occurring. The nature of the risk assessment will vary depending on the sectors and industries involved. It is important to remember that staff also have a duty to take care of their own health and safety and that of others who may be affected by their actions or omissions at work.
In addition there are a number of potential claims that may be brought by staff in relation to their health at work, such as:
• Breach of the Working Time Regulations 1998 with regard to rest breaks, limits on the working week and minimum paid holidays;
• Breach of contract claims, often relating to the implied term of trust and confidence if health issues are handled badly, which could also lead to claims for constructive unfair dismissal;
• Disability discrimination claims if the health issue relates to a disability under the Equality Act 2010; or
• Negligence claims for personal injury, for example in relation to work-related stress.
As for the business case for managing employee ill-health, the CIPD Absence Management Survey 2015 reveals that:
• Average level of employee absence has increased slightly compared to last year from 6.6 days to 6.9 days per employee per year and public sector absence has increased by almost a day.
• The average cost of absence per employee is £554 a year but £789 in the public sector and £639 in the non-profit sector.
There are other consequences.
Workloads increase for the other members of staff, performance and customer satisfaction levels may fall and staff morale may be affected. Many organisations which have been involved in outsourcing or restructuring now have reduced headcount and budgets. They cannot afford to have their staff, particularly in key roles, absent from their business for, potentially, an extended period.
Consequently, managing sickness absence effectively is crucial for all organisations regardless of sector and size.
Return to work interviews, trigger mechanisms, training for line managers and the involvement of occupational health are all well-established ways of managing sickness absence. Increasingly, employers are tackling it more proactively, particularly in the context of workplace stress and mental health. Many employers are adopting initiatives to improve work-life balance and employee well-being by providing flexible working, access to counselling services and employee assistance programmes, health screening and private medical insurance.
According to the CIPD Survey 2015 two fifths of respondents report an increase in stress-related absence which increases to half of public sector organisations. Over a year, one in four people will experience mental health problems, with anxiety and depression being the most common. The Centre for Mental Health estimate that 91 million days are lost each year due to mental health problems at a cost to employers of £26 billion a year or, put another way, £1,035 for every employee in the UK.
Following a 2015 survey carried out by the mental health charity Mind on talking to employers about mental health issues, we asked our clients why employees might not be open about their mental health problems and 65% gave the reasons as shame, social stigma and fear of detriment.
One of the best ways of managing mental health in the workplace is to create a more open culture where people feel able to talk about their condition and some of Mind’s recommendations are:
•Lead by example and send a clear message that staff well-being and work-life balance are important, so work sensible hours, take lunch breaks and annual leave, and, in the digital age, exercise control on accessing work-related devices out of hours.
•Put in place and raise awareness about a Mental Health at Work policy to ensure that staff know how mental health is managed and what support (such as employee assistance helplines) is available.
•Provide training to HR and line managers on mental health and stress management.
•Promote positive work relationships to support a culture of teamwork, collaboration and information sharing.
Blake Morgan recently launched a dedicated Well-being, Health & Safety programme as part of its firm-wide training Academy. All staff have access to a wide range of resources via an online portal and can attend courses on topics such as personal resilience or can download resources on subjects such as managing stress, coping with change, mental health and mindfulness.
The firm has also launched a Mental Health First Aid scheme which sees trained Mental Health Champions working to raise awareness of mental health issues, provide support and help to access further resources for individuals and their line managers.
Liz Bryne, Head of Learning and Development and responsible for the Academy programme, says:
“We are committed to creating a working environment which enables all our people to achieve their full potential whilst feeling supported and valued as individuals. It is essential that we prioritise mental health issues as much as physical health issues and our new Well-being programme has been designed to help people perform at their personal best in a safe and sustainable way. That has to be as good for the health of the individual as it is for the health of the business.”
There is a wealth of info
rmation and advice available for employers and a good starting point is to adopt the good practice model in the Health and Safety Executive’s “Management Standards for work related stress”. There is also helpful Acas guidance, “Promoting Positive Mental Health at Work and the Mind guidance, “How to support staff who are experiencing a mental health problem”.
By taking some relatively simple steps, it is possible to ensure that robust policies and support systems are in place that are of benefit to both the organisation and those who work for it.
Debra Gers is a senior practice support lawyer at Blake Morgan.
Debra is responsible for the firm’s public employment training programme, including the Breakfast Clubs and Summer Employment Law Workshop.
Debra is a regular speaker at legal conferences and external events for organisations including ACAS, the CIPD, HPMA, HR Retail Circle and Welsh Government. She monitors key cases and legislative developments in both the UK and EU to provide legal updates and internal training on topical issues as well as future developments.
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