Drafting mental health laws in a post-apocalyptic world

mental health employment law

Imagine drafting completely new laws to protect people with mental health problems in the workplace. What changes would you bring in? What issues would you seek to solve? Here, Stephen Heath, a lawyer at mental health charity Mind, looks at what re-drafting the current laws could achieve. 

As lawyers, my wife and I occasionally wonder what skills we have to offer society in a post-apocalyptic world. Whenever we return from visiting my family in Devon, for example, we’re reminded of our lack of practical skills. My parents used to live on a farm with its own well and my relatives are doctors, builders, nurses, cooks and gardeners. In other words, they each possess the sort of practical skills that would be useful for a zombie apocalypse.

Stephen Heath, lawyer at mental health charity Mind.

However, we comfort ourselves that, being lawyers, we can draft the new laws society needs as civilisation is rebuilt. And perhaps that idea – of drafting laws from scratch – is worth thinking about, when it comes to mental health in the workplace.

If you had the chance to totally revamp the laws that support and protect people with mental health problems in the workplace, I am sure that you would end up with something better than what we currently have in Britain.

The Current Law

There is no legislation specifically directed at mental health in the workplace. However, there are safeguards relating to workers’ ‘health’ provided by health and safety legislation and there are the disability discrimination provisions of the Equality Act 2010 (EA).

The Health and Safety at Work Act 1974 provides for a general duty on every employer ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’. The Management of Health and Safety at Work Regulations 1999 (the MHSW Regs) also require employers to assess and review risks to the health and safety of their employees while they are at work, to provide health and safety information and training to employees and to have a written health and safety policy.

The health and safety legislation’s obligations relate neutrally to health and so encompass mental health. But the legislation has emerged from Victorian legislation on the protection of physical rather than mental health and this is reflected in the way it is enforced.

The Equality Act 2010

The Equality Act 2010 (“the Act”) provides protection in the workplace (and in other areas of life) for those who satisfy the definition of disability. This in itself is troubling. No other of the protected characteristics under the Act have a gateway like this. There is no protection whatsoever, either within the Act or elsewhere for people whose mental health problems are held not to amount to a disability.

The definition of disability in the Act itself is not without problems. Section 6 provides “A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” Long term means lasting or likely to last for 12 months or likely to recur.

The definition clearly follows the medical model of disability. The focus is on the “impairment” and there is no reference to the environmental and attitudinal barriers faced by disabled people. As such it is unlikely that it is compliant with the partial definition of disability in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which was ratified by the UK in 2008. The UNCRPD contains a non-exhaustive definition of disability in its preamble 5 and at Article 1.

Preamble 5: –

Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

Article 1:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

It will be seen that the definition includes those with long-term impairments which is reflected in the Act. Mind questions why this should be the case. Is someone with a moderate condition which last for 12 months more deserving of protection than someone in acute and severe short-term crisis? Some mental health problems are often unpredictable in their presentation and fluctuating in their nature and it is often difficult to advise confidently on whether those who suffer from these problems are protected by the Act.

The question of reasonable adjustment can be troubling for employees, employers, lawyers and judges. If the employee is substantially disadvantaged in the workplace by ‘a provision, criterion or practice’ (PCP) the employer is under a duty to adjust.  It is not uncommon for the parties to litigation to disagree on what the PCP is and for the tribunal to disagree with the parties. Sometimes the EAT will add a further layer of disagreement.

Reasonable adjustments provide a wonderful mechanism to address the difficulties that people with disabilities face in the workplace. They are not properly understood though. It is far easier to get your head round the idea of a wheelchair user being disadvantaged by a staircase obliging an employer to install a ramp than accommodations to assist people with mental health problems.

The technicalities

Mental health is complex and there is a high level of interactivity between someone’s mental health and their experience of the workplace and the relationships within it. The current legislation often means that requests for adjustments and litigation arising from them get mired in technicality. Where is the disadvantage? What’s the PCP? What even is a PCP? Why aren’t HR answering my emails?

There is even a question about whether the way equalities legislation is structured helps people with mental health problems. We have a formal complaints-based approach to equality in the UK. Formal as opposed to substantive – in that it is based on the notion that treating people equally achieves equality.

The “substantive” approach to equality recognises that disadvantaged groups don’t have a level playing field, often for systemic and historic reasons, and that proactive preferential measures are needed to achieve equality in practice. Social progress has been slow under the formal approach in comparison to that achieved under the substantive approach adopted, for example, in addressing employment rates of Roman Catholic workers in Northern Ireland.

A complaints led approach means that it is down to individuals themselves to enforce their rights. If you have a problem, you have to take it up yourself in the highly stressful and potentially expensive arena of the employment tribunal. There are no commissions or other bodies that enforce standards. Problems are solved one-by-one and systematic problems can be left unaddressed in workplaces.

A complaints led process under the Act is inherently adversarial too. If someone makes a complaint that they have been discriminated against it often received badly by the employer. The reaction is not to solve the problem but to go into defensive mode which can generate further conflict. This, it hardly needs saying, is often the last thing that someone with a mental health problem needs.

Making employers aware

Another significant problem with the disability provisions of the Act is that 2 important provisions – discrimination arising from disability, and reasonable adjustments – require the employee to make his or her employer aware of their disability. Various research, including Time to Change’s Attitudes to Mental Illness 2014 Research, has indicated that around half of workers say they would not disclose a mental health problem to an employer.

While the work of bodies like Time to Change and my own employer has done much to help reduce the stigma of mental health, we still have a long way to go. A 2009 survey revealed that 56% of employers would not want to employ someone if they knew they had depression, even if they were the better qualified candidate. People with mental health problems do not want to disclose them – arguably with good reason.

The future

We don’t know whether this parliament (or the next) can deliver the reform that the government pledged earlier this year. We suspect that there is not a silver bullet legal solution here. Mind’s chief executive Paul Farmer recently co-authored Thriving at Work – The Stevenson/Farmer review of mental health and employer which set out a 10 year vision of mental health in the workplace. It envisaged that in 10 years’ time: –

Every worker would have good work that contributes positively to mental health

Everyone has knowledge tools and confidence to understand and look after our own mental health and those around us

Employers would be:

Equipped with awareness and tools to address and prevent mental ill health caused or worsened by work

Equipped to support individuals with mental health problems to thrive

Aware of how to access timely help to reduce sickness absence

This would lead to a drastic reduction in numbers of people with long-term mental health problems from leaving employment, which currently is estimated at 300,000 per annum. The report urged the adoption of core standards to be adopted by all employer, to:

Produce, implement and communicate a mental health at work plan;

Develop mental health awareness among employees;

Encourage open conversations about mental health and the support available when employees are struggling;

Provide employees with good working conditions and ensure they have a healthy work life balance and opportunities for development;

Promote effective people management through line managers and supervisors;

Routinely monitor employee mental health and wellbeing.

Legal reform

Culture change is crucial, but legal reform is probably necessary to support this. As to what that reform looks like, a change to the definition of disability and demystifying the law on reasonable adjustments would be a good start.

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