A need to negotiate over growing problem of mental health at work
Disability equality legislation has been considerably strengthened in recent years, but it seems to have passed those with mental health problems by. According to a recent report by the OECD group of developed nations, people with a mental disorder are two to three times as likely to be unemployed as those without, while those who are in work are “struggling to cope”.
The OECD says one in five workers suffers from a mental illness, such as depression or anxiety, and that three in four of those with mental illness report reduced productivity at work, compared to one in four workers without a mental disorder. Work absences are also much more frequent for workers with mental illness.
Ominously, about 30% to 50% of all new disability benefit claims in OECD countries are now attributed to mental ill health.
The TUC points out that “people with mental health problems experience some of the most severe disability discrimination in the workplace”. Indeed a survey of 1,822 UK employers by online counselling and coaching firm Mentaline found one in five employers admitting that they would be less likely to employ somebody they knew had a history of mental illness. Two-thirds said they would be more sympathetic towards an employee with a physical than a mental illness. And two in five (39%) of employers said that they “struggled” to take mental health issues seriously.
It is not surprising then, that, of the one-fifth of UK workers who have called in sick because of stress, a staggering 93% say they gave a different explanation for their absence, according to a 2010 survey by the mental health charity MIND.
Employees with certain mental health impairments are protected under the 2010 Equality Act (formerly contained within the Disability Discrimination Act). In such cases employers are obliged to make “reasonable adjustments” to take account of their condition. However, to be covered by the legal provisions, a person would need to show their condition meets the legal definition of a disability (see box below on the law).
As this is quite restricted, it is important for employers to have an inclusive workplace mental well-being policy to help achieve an environment supportive to those with mental health problems.
The law and mental disability
Under the 2010 Equality Act, an employer must make reasonable adjustments for a person defined as having a disability. A person is defined as having a disability if they have “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
The Employment Appeal Tribunal has given further guidance as to when a mental health condition is likely to be regarded as a disability under equality laws in the case of J v DLA Piper UKEAT/0263/09. It indicated that “reactive depression”, in the form of the “anxiety, stress and low mood” a person suffers as a reaction to adverse circumstances such as problems at work, is less likely to qualify, although each case must be examined on its own individual facts, in particular the severity of the condition. Meanwhile, “clinical depression” will almost always be regarded as a disability.
In practice, the requirement for a condition to be “long-term” will often limit the scope for adverse reactions to life events to amount to disability. An impairment has a “long-term” affect if it lasts for at least 12 months, or for the rest of the individual’s life. Recurring conditions may amount to a disability if they are likely to recur.
In terms of workplace policies, it may be best to have a catch-all clause such as that at the Highways Agency. Its guidance does not restrict the provision of reasonable adjustments to employees covered by the letter of the law, but states: “If someone has a mental health condition it is sensible to assume they may be covered by the DDA and to actively consider what adjustments, if any, are necessary to help support them do the job. Considering reasonable adjustments is the sign of a good employer.”
In the UK there have been many initiatives by mental health campaign groups and charities, such as MIND, the Richmond Fellowship and Mindful Employer (an employer scheme to help employees with mental health issues to stay in work), to encourage employers to adopt positive policies towards employing people with mental health problems and supporting those in work.
Unions have also been on the case. The forthcoming TUC Equality Audit 2012 will show that one in three national unions have current policies or guidelines for their negotiators on the subject. And the TUC itself produced very practical guidance in Representing and supporting members with mental health problems at work in 2008.
Indeed, the Equality and Human Rights Commission itself urges unions to “negotiate and implement a mental health workplace policy” with employers. In a campaign pack for union representatives, it says: “By putting mental health on the bargaining agenda, reps can persuade managers and employers to adopt a less prejudiced attitude to mental health.”
However, a survey of 170 union workplace reps carried out by the Labour Research Department for the TUC Equality Audit suggests that employers with comprehensive policies of this type are few and far between. Just under a quarter of the reps said their employer definitely had some sort of policy commitment on good mental health at the workplace, but many of these were restricted to work-related stress. Although work-related stress policies are very important in themselves, they do not generally address the full range of mental health problems which hinder many people from participating fully in the workplace.
Workplace Report has examined the policies provided as part of the survey to establish some of the key points that are covered in the best workplace policies on mental ill health at work.
The first of four key points is:
an acknowledgement that many people with mental health problems can be excellent employees if they receive the necessary support and flexibility, and development of a workplace culture that goes with this and that encourages employees to be as open as possible about any mental health problems.
Shop and distribution workers’ union Usdaw has produced a briefing for reps on supporting members with mental health issues. This points out that “most people with a mental health problem would rather not tell anyone because they worry about the stigma and discrimination they may face. Seven out 10 people with a mental health problem say they have suffered discrimination because of it.”
But the union says members with mental health problems may nevertheless benefit from being open. It points out that they “may have poor attendance or performance and this may lead to them being disciplined under capability procedures or absence management policies. They may also find that aspects of their job make their condition worse.”
One employer whose policy does take an inclusive approach is GKN Aerospace at Filton. The aims of its Mental Health Procedure include “to develop a culture that is supportive and non-judgemental of people with mental health problems” and to provide “assistance for employees in managing mental ill health in themselves and in others”.
The procedure also states: “GKN Filton will not disadvantage unfairly an employee who admits to suffering from mental ill health issues. An employee will be considered for any position for which he or she has the necessary skills and experience and are fit to undertake.”
GKN points out that, while it “has no control over external or personal factors”, it is “committed to develop procedures, employee development measures and support systems to help all employees understand and recognise the causes of mental ill health, and take positive steps to manage mental ill health effectively”. It says this includes “encouraging employees to achieve a good work-life balance in order to enhance their well-being.”
The policy has a detailed allocation of responsibilities for managing mental ill health which it says “rests at all levels of the organisation”. As well as roles for HR, business managers and occupational health, it specifies that: “Trade union representatives shall be responsible for the provision of representation and support as appropriate.”
The Highways Agency policy also homes in on the culture of the workplace. It states: “The most important single adjustment a manager needs to make may well be about attitudes and assumptions to mental health.”
Another important aspect of a progressive approach to dealing with mental health problems at work is:
flexible sickness absence management procedures that record absence related to a person’s mental disability separately from other sickness absence and allow time off for therapy or self help.
The TUC says employees with mental health problems should be allowed flexibility around the standard sickness absence arrangements because they (as well as those with other disabling conditions) may have higher than average time off and so be caught out by sickness absence management policies.
Its guide, Representing and supporting members with mental health problems at work, says that sickness absence management procedures should allow for separate recording of absence related to a person’s disability, including where that disability is down to mental ill health.
Just under one in four respondents to the Labour Research Department’s survey of union reps said their employers allowed some form of leave to deal with mental health problems outside the standard arrangements (although this was sometimes on an informal basis rather than a laid-down policy).
One is St Helens and Knowsley Teaching Hospitals NHS Trust whose policy states, under the heading Disability-Related Absence: “Where an absence occurs which is related to a disability, the absence may be considered a reasonable adjustment when it is to allow the employee time for treatment, assessment or rehabilitation. Such absences will not be recorded as an absence due to sickness but as a disability-related absence. (The employee must be classified as disabled under the Equality Act 2010 and have previously disclosed their disability.)”
A rep from Dorset Fire and Rescue said their employer’s practice was: “For those who have or who develop a disability as defined by the DDA (now the Equality Act), sickness absence related to their disability will be recorded separately from other sickness absence.” The position was similar at Devon and Somerset Fire and Rescue, Norfolk County Council, the London Borough of Haringey and Aberdeen University.
The policy at City and Islington College also says: “Absences due to disability related reasons will be recorded separately from sickness absence records. HR will advise on all disability related cases in relation to trigger points and reasonable adjustments.”
It is also useful to have a provision for “disability leave”, allowing an employee and employer to plan for any regular attendances, such as for counselling appointments that have to take place during work hours. Electricity generator Sembcorp, for example, allows people to attend counselling where required, and a rep from delivery firm DHL said the firm had agreed to this in an individual case, though this was a discretionary act rather than a policy.
HM Revenue & Customs has introduced a provision called Disability Adjustment Leave (separate from disability-related sickness absence) which provides “reasonable paid time off from work for disability related assessment, treatment or rehabilitation”, generally when the individual is otherwise fit for work. In the case of employees with a mental health disability as defined by the Equality Act, the leave might be available for counselling, psychotherapy or psychologist appointments.
The policy document says the leave “is usually for a fixed period or periods, that can be planned in advance by the jobholder and their line manager, and for which there is a fixed end date.” It adds that the leave “should be agreed for a specified reason and will mostly be a one-off or short term absence.”
Good mental health policies also cover:
adjustments to the employee’s working arrangements or job where appropriate to a person’s condition, such as the offer of flexibility over working time or work patterns or a change in tasks.
One employer which sets out a comprehensive range of adjustments which might be applicable to employees with mental health problems is the Highways Agency. These include:
• re-arranging responsibilities within the team, for example, exchange a single demanding project for a job consisting of a number of smaller tasks.
• transferring the employee to another job;
• part-time working, job-sharing or flexible working hours; and
• additional support and a period of adaptation during changes of work organisation.
However, it also points out that “occasionally, people with mental health problems experience difficulties with concentration and/or memory”. In these cases, relevant adjustments may include providing partitions or reducing noise in the working environment, getting the line manager to provide written instructions or even making use electronic reminder solutions.
The Highways Agency guidance, along with that from a number of other organisations, also notes that people with mental health problems might be on medication that has side effects, such as lethargy in the mornings. It says “managers should allow for this and consider allowing for a later start.”
The final key part of a good workplace policy on mental ill health should include provision for:
rehabilitation through flexible working and support for employees starting/returning to work after a period of absence due to mental ill health.
For those who are off for a long period of absence with mental health problems it is often particularly important to have some form of intervention programme to ease their return. The Royal Bank of Scotland (RBS) did have a “Back to Health, Back to Work” policy, through which the employer paid for private treatment to facilitate earlier returns to work. Although the formal policy has “stalled”, according to an RBS union rep, the bank still provides and pays for early intervention, including CBT (cognitive behavioural therapy), with mental health issues such as stress, depression and anxiety.
A number of large employers provide help through bought-in counselling services and employee assistance programmes and through occupational health (OH) departments where they have them. In particular, many emergency services, due the nature of the work, have such procedures, including the Royal Berkshire Fire and Rescue. The service refers employees “under the strictest confidence to OH immediately where the employee reports they are suffering from stress, depression or anxiety or where their certification indicates they are absent from the workplace for this reason”.
A detailed Workplace Rehabilitation Policy is in place at St Helens and Knowsley Teaching Hospitals NHS Trust which defines rehabilitation as “the restoration of the employee to the fullest physical, psychological and vocational status consistent with that prior to their pre-absence status or to which they are capable”.
If the Trust’s OH department recommends rehabilitation for someone returning to work following a period of extended sick leave, a rehabilitation coordinator will assess what measures are necessary. Possibilities relevant to those with mental health issues include: “job modification”, involving changes to hours, shift patterns and work organisation; “condition management”, which is support/advice to enable the individual to “optimise the self-management of their condition”; and other measures such as a buddy system, a mentor or supernumerary status.
While some of the organisations mentioned in this article have excellent policies relating to mental ill health, they tend to be few and far between and there is a need for more work to get the issues better understood and measures more widely adopted.
And clearly polices only take things so far: a number of reps responding to the survey pointed out that, while their employer had good policies on paper, they as union reps had to fight tooth and nail for them to be properly implemented in practice. One from a major electronics company said: “Although policies exist (in this company) they are not implemented as many managers are not aware of the signs or do not pay particular attention to their employees.” As ever, it will up to union reps to make the policies stick.
Austerity and mental ill health
“The share of workers exposed to work-related stress, or job strain has increased in the past decade all across the OECD,” says the OECD report, adding that “increasing job insecurity and pressure in today’s workplaces could drive a rise in mental health problems in the years ahead.”
The OECD’s picture of a rise in mental health problems due to job insecurity is already borne out in the UK by surveys carried out by both the Chartered Institute of Personnel and Development (CIPD) and the Labour Research Department (LRD).
The CIPD’s latest (2011) annual sickness absence survey of employers revealed that, for the first time, stress has become the most common cause of long-term sickness absence in the UK and that there is a link between mental ill health and job insecurity. “Employers planning to make redundancies in the next six months are significantly more likely to report an increase in mental health problems among their staff (51% compared with 32% who are not planning redundancies).”
It revealed that the public sector was being worst hit. CIPD adviser Jill Miller said: “Stress is a particular challenge in the public sector where the sheer amount of major change and restructuring would appear to be the root cause.”
And the LRD survey of 170 union workplace reps carried out for the TUC Equality Audit 2012 also points to a growing problem of mental ill health at the workplace. Out of 102 reps able to report on the level of mental health problems in their workplace in the last two years, 60% said there had been an increase. Two in five respondents (39%) said there had been no change in that period and just one reported a decrease.
Union reps in the public sector were more likely to say there had been a rise in reported mental health problems, 75% of those who could answer saying the number had increased in the last two years compared with 48% in the private sector.
And reps in larger workplaces were significantly more likely to report a rise in problems: more than three-quarters (79%) in workplaces with 500 or more employees said there had been an increase compared with 36% from workplaces with fewer than 500.
Half of all the reps in the survey said the union had represented members with problems arising out of mental ill health over the last two years (another fifth did know if it had).