Our incredible managing partner Jodie Hill recently worked on a Q&A with Daniel Barnett, as part of his employment law sessions. Daniel also has a podcast, Jodie’s episode of which can be heard here.
If you’re more of a reader than a listener, we just wanted to share the most interesting and insightful questions which came from that Q&A, and Jodie’s responses.
As a manager or somebody in HR, if you’re told by someone that an employee is struggling with their mental health, what should you do
If you are in the workplace and you actually suspect that someone is struggling, you should approach that individual, especially if you know them personally. If you are their manager, it would be sensible to arrange a one to one. Ultimately, what you’re trying to do is create a safe place in which you want that individual to open up about their condition. Now, if you haven’t got any information other than ‘you just know’, then, obviously, it’s for that individual to share that information with you. You can ask some prompting questions; you can ask them about their behaviours or ask them about any information that you’ve been given from other people, provided they’ve said that you can pass that information on.
Essentially, in order to create that safe environment, you do need to already have, in my view, quite an open culture. So, it really does depend on the culture of each workplace. But ultimately, I would be advocating for you to create a psychologically safe place for that individual to open up first, then explore if there are any reasonable adjustments for them if it’s affecting their workplace. So, it really depends on what comes out of that conversation as to where it goes next.
What are the three things that every company, whether big or small, should have in place to support an employee’s mental health?
I think the first thing is actually the culture. I think that’s a really difficult thing to say, as a top tip, but essentially, it’s a key element in creating a positive place where people can be open about their mental health. If you don’t have a positive work culture where there’s a genuine open-door policy and where people genuinely know that, if they’re struggling, they can go to their manager or there’s a designated person in the workplace to go to, then it’s going to be really difficult to implement any effective or meaningful initiatives throughout the organisation because people don’t feel engaged. So that’s the first thing.
The second thing is that I would actually advocate Mental Health First Aiders. I think they are really, really helpful in an employment context for a few reasons. The first reason would be more from a proactive perspective. You can have those Mental Health First Aiders who generally have a deeper understanding of conditions on some of your committees, they can help with HR, but they can also help with any initiatives that you’re running because they’re generally people who’ve volunteered at all levels, and can actually give you a bit of insight into what individuals might be wanting. They also have a better understanding of mental health conditions. So Mental Health First Aiders from a proactive sense, but also in a reactive sense, where there’s a crisis. We are seeing so many more people, unfortunately, taking their lives at work. Just as a physical first aider would help with a physical emergency; a Mental Health First Aider would help out in that situation. They would get the individual to a safe place, they would be able to support them in that immediate crisis moment, and they would signpost them and get emergency services there to help them
The third top tip would have to be the mental health risk assessment, the One Mind Campaign. It’s something I’m personally very passionate about, mainly because I’ve seen it work so well in organisations. Essentially, it’s asking individuals what their problems are at the moment, but not in an invasive way, using technology so that it’s anonymous and actually trying to understand what people need in terms of support and training. It’s also about identifying risks, so where someone might be already suffering from either depression or anxiety or another condition and they might be either a risk to themselves or to others. So it helps proactive analysis, but also, you’ve got the whole preventative piece. But actually, if there is a risk, can you put anything in place to support those individuals? That might be training, it might be an individual risk assessment on that person as well as the organisation.
Essentially, what we’re doing is moving away from the tick-box approach that a lot of organisations have by just putting people on training, and actually looking at it more proactively and more preventatively when it comes to the wider initiative within the workplace.
There’s often tension in the workplace between managing performance and managing somebody’s mental health. How do you reconcile that tension?
It’s a difficult one. In my view, I would deal with a mental health problem first – make sure that that person is safe, make sure that they have the right support in place in the workplace, and also making sure that they know exactly what they need to be doing within their role. Then separately I’d deal with the performance issues because the adjustments are already in place. Now, as part of your process – it might be a long-term sickness absence process or a capability process – you may need to adjust those processes for the disability, depending on whether that’s reasonable or not. But ultimately, balancing the needs of the organisation with the mental health of the individual is a really difficult one. And it’s taken very much on a by case-by-case basis, in my view.
Should a situation be managed any differently if an employee has less than two years’ service?
No. From my perspective, I’m not talking about managing something in a fair or unfair way. It’s really looking at it from a disability discrimination way. Ultimately, a mental health condition could amount to a disability. So regardless of length of service, you do need to be mindful of that throughout the entire process because it could end up being that the dismissal itself is discriminatory.
Should Occupational Health referrals for mental health conditions be treated any differently from referrals for physical conditions?
We find all Occupational Health experts really do is repeat what the employer is telling them, so it doesn’t take our client much further.
I find that’s so common with mental health. The best solution that I’ve found is actually finding Occupational Health therapists that deal with mental health conditions. What they can do is have a really deeper understanding of how that condition might be manifesting for the individual and make some sensible suggestions in terms of adapting their workplace. Now there are lots of organisations online that you can find. I found an organisation recently called Simply People (www.simply-people.co.uk) where you can find someone who’s a specialist. And I found that that was really, really helpful rather than just a generalist, because of the nature of the condition. Try to go a bit deeper into the background of the therapist that you’re referring to them to.
Do you put performance management on hold if someone’s got mental health issues?
Well, to be honest, I think the answer is it depends. It depends on how long they’re off sick for, what the performance issues are and whether putting the process on pause is because that is a reasonable adjustment that you want to make to allow them to get better to engage with the process, or simply because they’ve been off on long-term sick for a year, they had poor performance prior to that, and they don’t look like they’re coming back. So in my view, it does depend on where that person is in the sickness process, what the poor performance was – whether it was linked to the mental health condition or not – and actually whether or not you could use that as a reasonable adjustment in itself by pausing it to allow them to engage in the process.
How far is an employer expected to go when an employee suddenly claims they have a mental health issue, yet refuses to agree to a medical report from either their GP or Occupational Health?
It will seem sudden regardless of whether it is actually sudden for that individual. If they’re unwilling to engage, in my view, you can tell them that you can only deal with the information you’ve got in front of you. So as an employer, you can only deal with the information you’ve been given, and if they’re unwilling to engage in that process, then just make it clear to them that whatever the process is – whether it’s disciplinary or a capability issue – what the consequences are and encourage them to engage in seeing a medical practitioner so that you can either support them or understand, at the very least, what the impact of their condition is on their ability to do their job.
If an employee fails or refuses to be medication compliant and continues to behave in an unacceptable manner or fails to perform their role to the standard you require, what can an employer do?
I suppose it depends on why they’re not taking the medication. If they’re actively not taking it and they’ve been prescribed and told that they should be taking it, then potentially, it could be a misconduct issue. But for me, it’s more of a capability issue, but I suppose it depends why doesn’t it? I think, ultimately, balancing whether it’s misconduct or performance can be a real challenge. I’ve actually come across this in practice a few times, and the way that we’ve dealt with it is that the individual has basically been given an ultimatum as to whether or not they want to continue to be in that particular role. For example, if they’re not taking the medication, finding out why aren’t they taking it and understanding the reasons behind it rather than simply going straight to dismissal. It’s understanding the reasons behind it and giving them an ultimatum.
An employee might not recognise they have a mental health issue, but their manager might suspect they do. How do you address that if when they’re spoken to about the issue, they deny anything untoward?
In my view, it’s a difficult one to approach because you can’t, as an employer, diagnose someone. That’s not your job. Your job is not to say you believe they have a condition or make any assumptions about what the condition might be. All you can do is address the issues that you have. If they’re saying that they don’t have a condition, then, in my view, they’re not necessarily covered by the Equality Act. You have no knowledge of the condition or the impact. I would explore that with them first. It’s a difficult conversation to have, and nobody likes having those difficult conversations, but you do need to explore it in a safe environment where they feel that they can open up. If they’re still refusing to engage in that and saying that there isn’t anything wrong, then I would deal with it in a way that you would ordinarily deal with a performance or misconduct issue.
How would you, as an employer, handle a redundancy process where the employee’s mental issues have already caused them to self-harm because of the stress? Assume it’s all a genuine condition.
We’ve had this quite a few times where the employee’s quite high risk. I would actually try to approach them on a without prejudice basis and see whether they want to engage in a settlement rather than putting them through the process. Often, what you find is that attending the process and the uncertainty around all of that exacerbates their condition. So if you can come to an amicable resolution with them, and they have a bit of certainty around what’s happening, in my view, that’s the best way to proceed. Obviously, you can’t force them to engage in that process. But ultimately, it’s either that or obviously go through the redundancy process with everyone else. So that seems like the kind of thing to do in those circumstances.
If an employee has no predisposition to stress or depression but goes off work with stress or depression during a performance management process, can an employer safely assume that the Equality Act won’t apply?
Never assume the Equality Act doesn’t apply is the first thing. The Equality Act could apply because it’s not necessarily that it hasn’t lasted for 12 months, it’s that it is likely to last more than 12 months. So the fact that they’ve only just had an onset of a condition doesn’t preclude them from meeting that definition. So I certainly wouldn’t assume anything at that stage. It’s more about the impact. Has that got a substantial and adverse effect on their ability to do their day-to-day or is this a reaction to a performance process? Again, I definitely don’t think you should assume, but it certainly does have some red flags.
Must an employee tell an employer that they’re taking medication for a mental health problem?
There’s no obligation to disclose that information. What I would say is that as an individual, I’ve suffered from anxiety and PTSD in my career as a lawyer, and one of the things that I found really helpful was that when I was open about my own condition and the medication I was taking, when I had bad days, it was actually really helpful because I was able to talk about that. And I still do that now with my team. Obviously, I don’t go into loads of detail, but I do think it’s helpful for people to be really open if they actually want the support. Sometimes you can get side effects from medication, and it is helpful if your employer knows about that because they can manage that and support you at work.
How do you become a Mental Health First Aider?
We offer this training at Thrive with peer to peer support community. You can now book on our Thrive Law and The Jordan Legacy CIC Mental Health First Aid training courses for April and May 2021.
We are delighted to announce that Thrive Law will be partnering with the Jordan Legacy, to achieve our shared mission of supporting those who are struggling with their mental health or contemplating taking their own life by creating 10 Mental Health First Aiders during 2021.
This programme goes beyond simply providing MHFA training – it is unique in providing ongoing peer and community support to those who attend the courses to help keep the conversation going ads to ensure those who attend feel supported.
Will you help us make a real difference to those who are struggling or in crisis with their mental health?
Given the chance, I imagine we would like all managers or companies to undergo good mental health at work training. Assuming that situation isn’t prevalent, what simple messages would you recommend companies and managers think about relating to mental health in the workplace?
I think it has to go back to the culture piece. Are you the kind of manager that someone could open up to? If you say there’s an open-door policy, do you genuinely have your door – obviously, your virtual door – is it open? How do people communicate with you? What we’re finding is that people say and do things and don’t follow through with them. So leading by example and actually following through with what you say you’re going to do is half of the battle when it comes to being a manager. I’ve certainly found that leading by example really opens up the door. People are so much more open with me because I’m open about my own struggles with my mental health. So I think it starts with us as people. You don’t need mental health training to actually follow through with what you say you’re going to do. If you say you’re going to support someone with reasonable adjustments, follow that up.
Thrive Wellbeing
Thrive Wellbeing is a mental health programme helping businesses to change their approach to employee mental health. Our 12-month wellbeing programme package is dedicated to helping you and your team champion mental health and offers something for everyone. The Thrive Wellbeing Programme has various online modules to complete, with guides for management, template policies, forms and emails, all ready to download and use in your business. As well as all these resources at your fingertips, you’ll receive regular email and video updates to help you keep the conversations going, and you’ll have the opportunity to take advantage of 1-2-1 support from a dedicated, qualified solicitor.
This is an online interactive platform to create a healthy and inclusive workplace, it offers expert advice and support on mental health in the workplace! The programme has outstanding long-term benefits for businesses in terms of promoting a healthy and barrier-free workplace leading to reduced sickness absences and increased productivity amongst your staff!
Please get in touch here to invest in your business and your employees!
Disclaimer…
Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk
