Your organisation and the law – mental health and stress
Unless you were under a stone recently, you will have been aware that it was Mental Health Awareness Week and that several of the charities involved are calling for a change in the law, so that it becomes a legal requirement for organisations to have mental health as well as physical first aiders. Heather Beach from the The Healthy Work Company takes up the story…
This is not a new idea, and was first tabled in 2016 by Norman Lamb MP and is now supported by him and Jeremy Corbyn.
For businesses like mine, which supply Mental Health First Aid training, of course this would be good news. It would also naturally further the purpose which MHFA has been evidence based to serve – that of reducing the stigma of mental health issues in the workplace and in society, raising education and giving people confidence in having a conversation with someone in distress, from a first aid perspective.
But would it really make a difference to tackling stress in the workplace?
Could it indeed be like providing physical first aiders and no health and safety to protect people in the first place?
First, let’s untangle a few things. Mental health itself is a much misunderstood term. It conjures up the image of people in distress. When we ask an audience what they think of when they think of mental health – it is stress, anxiety, depression. That is actually mental ill health. Mental health, like physical health, can be good or poor depending on all sorts of factors.
Then there is the range of mental ill-health – from serious mental illnesses such as bipolar disorder, schizophrenia, psychosis – which may be controlled and lived with effectively – to the incredibly common experiences of stress, anxiety and depression. I always cringe slightly when I see the statistic ‘one in four of us struggle with our mental health’. I think most of us struggle at some point or another and the ‘where does it all come from’ is a hotly debated topic still. The arbitrary ‘two weeks duration’, which turns sadness into a diagnosis of depression is bizarre when you think of the life events some suffer – from grief over death, divorce or redundancy. Is this supposed to disappear within two weeks in order to be dismissed as common sadness?
Some experts cling to the concept that it is all about a chemical imbalance, which pills can cure, others are more circumspect, seeing causes as potentially genetic, psychological or social. But mental health has been a very poor relation in funding so there are still huge areas of disagreement and a fair degree of confusion over vocabulary and definitions.
Why is any of this important? One thing that there is growing agreement for, is the role of social factors or ‘circumstances’ is significant in creating depression and anxiety which often have their roots in prolonged, adverse stress. MIND’s shows work to be the predominant risk factor, HSE’s work in this field showing there is almost always a work related cause of adverse stress (even if there are other factors too) and innumerable studies going back to the 1990s show a lack of mastery and autonomy at work. Doing what is perceived as meaningless work which one is micro-managed to achieve, the worst type of soul destroying, stress causing activity. The worst time of day, according to forthcoming research by Layard and Clark is ‘When you are with your boss’. Conversely, unemployment is an even bigger factor for depression and ‘Good work is good for you!’
The business case for health and safety is moral, legal and financial as we know. But the more the legal framework has been strengthened (especially around penalties) the greater the concern to comply from businesses. The ethical and financial arguments are just as compelling, but the law is the aspect which seems to turn it from an optional area of focus to a forceful one.
Existing legal framework
However, there is already law around stress in the workplace. It comes from two key places. The Management of Health and Safety at work Regulations 1999 which places a legal duty on employers to protect employees from stress at work by doing a risk assessment and acting on it. And under HR law, the Equalities Act (2010) which deals with disability discrimination.
The HSE has recently re-launched the Management Standards for stress to support these regulations, having reviewed them (they were originally launched in 2003) and declared them fit for purpose. The CIPD (the main professional association for HR Professionals) also support the HSE management standards and there has been joint work on creating management surveys around them. The research behind them seems robust and HSE has gone to a great deal of trouble to provide some user friendly tools for organisations to use. So why do so few companies have an organisational stress risk assessment in place? I suspect where an individual is struggling the health and safety professional may get asked to perform an individual stress risk assessment – but organisational?
Lack of enforcement
As we know, HSE and local authorities have had a significant drop in funding which has led to prioritisation of inspections in high risk environments. Also, aside from checking if the risk assessment was in place, what tools would need to be used to establish whether this environment was a healthy one from a stress perspective or not? How much training would need to be done to upskill an already over stretched inspectorate?
HSE would insist that the law is only about stress at work. Not mental health in general, but stress at work. How often is it the case that adverse stress and subsequent mental health issues are caused only by work? Too often it is impossible to disentangle. Was it the lack of support at work together with a bad boss which caused the issue, or the two children under two at home, with mum having just recently gone back to work; or a pre-existing mental health condition?
Prosecutions are thin on the ground because work related stress is very difficult to prove. Unlike the much more obvious ‘safety’ related issues.
In here for me sits the nub of the issue and is partly where I have some sympathy with the point of view of some professionals who believe this should not sit in the health and safety manager’s purview. For a start, if you are the kind of health and safety professional who has been stuck in a silo and has been forced into the ‘detect and correct’ domain, then you may have a problem with perception of your role within the organisation and it may be difficult to move from how humans interact with equipment into how they interact with each other. The management standards are likely to illicit information which needs every director to be involved in addressing. If one of the key causes of stress is a culture of bullying, how does the health and safety professional address this without involving the CEO and other senior managers? If the key issue is substandard equipment or lack of a certain resource, finance and procurement need to be involved.
If however you are the kind of health and safety professional who has been at the heart of the organisation, is seen as an enabler, have great influencing skills – then build a team with the HR function and do it together.
Clare Forshaw, who has worked in Health at HSL with a specific focus on the management standards for stress says: “Employers can often struggle as to where to start on the mental health journey. From my perspective the only sustainable and effective model starts with prevention and management of risk at the heart. This is not only then legally compliant – it is also the right thing to do. This approach sets the tone of trust and respect on which to build a robust model of care and enables progress towards a thriving not just surviving workforce.”
As we know, in order to be effective, risk assessments, shouldn’t be a document written up by the health and safety professional and held in a file. With a stress risk assessment it is simply impossible to do this. Added to this – it has to be so regularly reviewed! A snapshot at a moment in time may change with a new manager, new project or new system.
This may then, be a great place to start for a health and safety professional wishing to transform the perception of his or her role in the organisation. Or a vehicle to emphasise it. One of my clients recently told me that in moving to a more collaborative model of health and safety (Safety Differently in this case) the trust quotient improvements were so great that health and safety was the natural place to look at stress and mental health from.
The Equalities Act (2010)
Mental health may be considered to be a disability under certain circumstances and if you have a member of your organisation struggling with their mental health who you subsequently dismiss, they may take you to an employment tribunal if you haven’t followed due process. This may include consideration of reasonable adjustments to their role/hours etc. This obviously fits under HR law and in conversation with HR and Health and Safety professionals there is something of a view that HR have been ‘cleaning up’ after it goes wrong and health and safety are in a great position to support with prevention of issues in the first place.
A model from traditional health and safety
If we have looked at health and safety as being a role which reviews hazards and risks, tries to design them out, creates policy, as a last resort provides PPE, with first aid being there to assist when things go wrong, let us consider how this applies in the stress and mental health arena.
Any wellbeing policy needs to look at where the risks to wellbeing are in the first place. This might be through any number of techniques such as wellbeing surveys, use of the HSE stress management standards, questionnaires, employee forums, use of the EAP, sickness absence data. In understanding where the issues are, there is the potential to design them out – through providing the resources and support employees are asking for, through training managers to ‘be a better boss’ as well as to recognise the signs and symptoms of undue stress, to providing financial support and advice, better policies to improve employee happiness and engagement – flexible working, paid paternity leave.
Image courtesy of Clare Forshaw.
The PPE of the stress world is training your employees to cope better. This might be resilience training for example.
It seems to be easier for the health and safety profession to commission training on resilience and mental health first aid (peer to peer training) than to engage in the organisational issues which cause stress at work. What is pleasing it to see how introduction of these topics in training does seem to it result in making it easier to sell the concept of a strategy in this area.
For me, it comes down to, whatever the law says, if the profession is about health as well as safety, it is just the right thing to do.
Heather Beach runs The Healthy Work Company which provides training in MHFA, Stress Management for Managers and resilience. Her organisation also provides strategic support for wellbeing strategies. Contact her on [email protected]. Heather is moderating a debate on Stress and the Law with Clare Forshaw (ex HSL) and Alex Kiernan (from Loch Associates – an HR Employment lawyer) on Wednesday 20 June at 12.20 in the Occupational Health and Wellbeing Theatre at Safety and Health Expo.
She is also hosting a panel debate in the Keynote Theatre with Dr Dominic Cooper, who does not believe that stress and mental health should form part of the health and safety professional’s responsibility, together with Geoff Cox from HSE and Martin Coyd OBE from Mace on Tuesday 19 June at 1530.
Sleep and Fatigue: Director’s Briefing
Fatigue is common amongst the population, but particularly among those working abnormal hours, and can arise from excessive working time or poorly designed shift patterns. It is also related to workload, in that workers are more easily fatigued if their work is machine-paced, complex or monotonous.
This free director’s briefing contains:
- Key points;
- Recommendations for employers;
- Case law;
- Legal duties.