Phil Crosbie
In this month’s legal column from Eversheds Sutherland, Phil Crosbie says an employers’ approach to mental health must be different to how they view safety.
Many would be forgiven if they thought that the increased focus on mental health and wellbeing is in response to a recent change in the law. While the duty on employers to protect the ‘welfare’ of its employees has existed since the introduction of the Health and Safety at Work etc. Act 1974, the historic focus has been on physical safety and to a lesser extent, health.
The issue of mental health and stress can be said to straddle ‘health’ and ‘welfare’, yet many employers have placed it towards the end of their to do list. Any perceived reluctance is understandable. Issues with mental health are rarely visible within the workforce and even more difficult to objectively measure. Stress, and other such conditions, revolve around an individual’s own perceptions rather than what an employer thinks. In physical safety, a fall from height will have similar consequences on any member of the workforce; we therefore seek to prevent it. When dealing with the wellbeing of employees, two people performing exactly the same task could react in very different ways; a broad brush approach is unlikely to succeed.
If we tackle the issue of mental health as we would any other safety topic, we may first arrive at a risk assessment. The Health and Safety Executive (HSE) provide a helpful resource in this regard, and advise us to focus on the Management Standards to assess the ‘job’ aspects of an individual’s life and how that may impact on their mental health. The reference to ‘risk’ within the context of our legal duty is important; an offence can be committed through an exposure to risk without any actual harm occurring.
Despite this guidance, and the legislative focus on ‘risk’ we see many organisations rely on the safety nets surrounding mental health rather than tackling the issue in the first place. Looking again at the working at height example, the provision of first aiders will be part of the control measures employed by a dutyholder, but the initial priority has to be preventing a fall. When dealing with mental health, there is too much reliance on mental health first aiders, crisis telephone lines and Employee Assist Programmes to catch people when a risk eventuates. Should we not invest more to prevent them falling?
Increased visibility
We are not critical of the use of mental health first aiders and helplines, anything that increases the visibility and discussion of mental health issues has to be seen as a good thing. Raising the topic of mental health within team meetings and personal one-to-ones avoids the subject being seen as taboo; employees may be more likely to engage with their own challenges than if they have to be the one to put their hand up first. Targeted awareness is also important: posters on the rear of a toilet door may receive more reading time than on the safety notice board.
Management standards
Reflecting on HSE’s Management Standards, there are some easy wins such as ensuring that employees understand their role and how they fit into the organisation. I have spoken to many employees who vaguely remember a job description being handed to them on induction, but this would no longer represent their current role and responsibilities (if they could find it!).
Individuals also need to feel as though they are part of a team and have a line of communication about mental health issues that is not simply direct to their line manager. Mental health first aiders may fulfil this role, but perhaps mental health champions would be a more appropriate description. Employees also need to feel in control of their work; empowerment and ownership has been shown to have significant benefits when driving workplace safety. The same can be said of mental health. It is easy to see how the emergence of working from home can present fresh challenges in terms of face-to-face contact and those all-important ‘water cooler’ conversations; they need to be tackled head-on.
CREDIT: Andrés Canchón/Unsplash
Near misses
We also challenge employers to consider ‘near misses’ in the field of mental health awareness. Employers would usually agree that near misses in a physical safety context are a useful way of identifying potential for ‘real’ accidents. Is the same approach taken for mental health? Indeed, what would a near miss in relation to mental health look like? Organisations would be well placed to dedicate time to identifying what would be considered a ‘near miss’ in mental health. Perhaps reference to a ‘miss’ is unfortunate as it has physical connotations, and we should instead ask employees to identify ‘stressors’ – aspects of their work that they find unnecessarily stressful.
Tailored approach
Whatever control measures are identified, they need to work for the whole workforce. Some employees would prefer to engage a colleague to discuss difficulties, rather than an unknown third party; others would much prefer the anonymity. Those that work unusual shift patterns or nightshifts need to have the same access to support as everyone else. The same should also apply to remote workers and those who spend a lot of time away from an employer’s normal place of work.
Focus on the consequences
We know that the consequences of employee actions will very often be the driver for particular behaviours. Employers should highlight that early engagement and tackling potential workplace stressors is ‘best’ for the organisation as a whole, and will not lead to individuals being ostracised. Where possible, sharing stories of others within an organisation who have overcome difficulties will provide the most impactful encouragement.
As we now recognise the many benefits of a good approach to managing mental health, employers are asking what ‘good’ looks like. We have provided some ideas above to assist employers in walking that tightrope.
Phil Crosbie is a Principal Associate in the Environment, Health and Safety Team at Eversheds Sutherland. He has been a part of the team for over 13 years and has a broad practice that encompasses both defence and prosecution work. His main areas of specialism focus on transport, manufacturing, water utilities and aggregates. As well as contentious matters, Phil has significant experience working with clients to review and improve their compliance systems, and regularly provides in-house training on a range of related topics. You can email him at [email protected].
You can also read last month’s legal column, written exclusively for SHP by Eversheds Sutherlands, here.
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