October 31, 2024Duncan Spencer at IOSH analyses the legal position and impact of Mental Health First Aiders in the workplace.
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There is a growing tide of mainstream and social media content relating to mental ill-health in the workplace, increasing the pressure for employers to act. Business and union communities alike have it firmly on their agenda. Non-government global agencies like the World Health Organisation and International Labour Organisation lobby governments and business to reduce the burden of mental ill-health. Meanwhile, the de-industrialisation of Britain and the movement to a service economy has led some commentators to claim a mental health epidemic exists in UK workplaces.
Safeguarding workers from work-related stressors is a complex challenge. It is hard for organisations to connect their operational culture, management competency and the ebbs and flows of work requirements with the wellbeing and mental health of their workers.
Explaining away workplace stress by suggesting that “one person’s stress is another’s motivation” or arguing that “people react so differently it’s hard to tell what is going to be a problem”, may be one reason why employers gravitate towards tangible, but more reactive responses. Employee assistance programmes or the provision of mental health first aiders (MHFAs) fall in this category. These arrangements, of course, are recovery controls. They do little to mitigate workplace stressors and psychosocial risk and address its incidence only once it has occurred.
IOSH commissioned Nottingham University to complete a research study into the feasibility of Mental Health First Aiders in 2018. The study highlighted some of the issues that employers must consider when deciding to go down this path. Since this publication there hasn’t been any empirical research evidence, from any reliable academic source, that the provision of MHFAs provides a return on investment. Nonetheless, positive effects on worker morale, the destigmatisation of mental health illnesses, and more promptly signposting workers towards the help they need are often cited as benefits. What is more urgent perhaps is the emerging debate about the legal status of MHFAs.
Firstly, lets discuss statute law. In the UK, there is little doubt that work-related mental health risk falls under the Health and Safety at Work etc Act 1974 (HSWA74). The general duty to ensure safe workplaces, safe employees, safe working environments and safe systems of work extends to psychosocial risk. The Health and Safety Executive (HSE) have historically never prosecuted in respect of work-related stress. In October 2019 however, they announced a change of heart. They placed some caveats on their decision. The case must relate to several employees; it cannot focus on bullying and harassment (but this could be part of the picture); and the expectation is that concerns had been raised by workers and the organisation has had time to act. Prosecution for psychosocial risk remains unlikely compared to physical injury cases. The HSE has, however, published academic studies and guidance on stress in the workplace.
So what about civil law and mental health cases? The landmark case most often discussed is Walker v Northumberland County Council in 1995. Mr Walker was a social worker. He was allegedly given an excessive case load that caused him stress and a mental breakdown. On return to work after absence, his employer acknowledged that the workload caused the mental ill health and promised to reduce it. This did not happen, and Mr Walker suffered a second mental breakdown. The ruling in the case stated that the first mental breakdown was not foreseeable, but it made the employer fully aware of Mr Walker’s circumstances. Failing to act to manage his workload given the context of the first breakdown meant that a second was reasonably foreseeable. In short, the employer’s knowledge of the issue started at Mr Walker’s first mental breakdown.
Legal advice following this case pointed out that, if a worker discloses to a manager that they are stressed at work to the extent that it is adversely affecting their health, then the employer is given knowledge of it. At this point, the employer should investigate the case and take appropriate action to discharge their duty of care. Any subsequent work-related mental ill health becomes reasonably foreseeable if no action is taken. Many argue that the strength of employing MHFAs is the peer-to-peer relationship with those colleagues who seek support. But can it not be argued that the precedent set by the Walker case has implications to the possible legal status of MHFAs and this peer-to-peer realtionship? Consider the position of the employer. When appointing MHFAs they have:
I have been told many times by representatives from different organisations that MHFAs are independent to the organisation and act as advocates for the worker; that their dialogue with workers is confidential and isn’t shared with the employer. Given the employers involvement in their appointment and training, can this be true? Can it not be argued that MHFAs are acting as a company-appointed agent? Therefore, if a worker approaches them for help for the first time and discloses that work-related stress is impacting their mental health, are they are informing a company agent – and, by extension, the employer? Imagine that nothing is done by the employer at this point. Later, the worker suffers work-related mental health illness and absence, could it then be argued that the employer, via the MHFA, had been told and did have the necessary time and knowledge to prevent the illness progressing?
Again, there isn’t any statute or civil case precedent on these legal questions yet. But it does further emphasise the need to ensure that MHFAs are a fully integrated part of an employer’s mental health and wellbeing management systems. This will include finding the means for cases heard by MHFAs to be reported to the employer. If this is the case, then steps must be taken to explain this to workers and clarify how anonymity is preserved by the process. Then again, if the line manager is not informed, then when the worker returns to work, they may return to the same stressful conditions and be placed in the same position as Mr Walker. In any case, an important aspect of any safety management system is a feedback loop that provides opportunity for the organisation to investigate, to learn, and to consequently improve safety and health performance. For organisations to make best use of MHFAs, it may be in their best interests to consider how to integrate their role more fully into the system.
SHP is collaborating with IOSH’s new research department, Advice and Practice, to bring you a series of six articles focused on thought leadership.
Do you know the Hartman case where an in-house directly employed occupational physician was told by a job applicant pre-placement that she had a history of depressive illness but did not report that to the employer. He passed her fit and she got the job. When, later, she sued the employer for not taking reasonable care of her mental health, when they knew that she was vulnerable, the Court of Appeal held that the employer was NOT deemed to know of her vulnerability because occupational health had a duty of confidence and hadn’t told them. Does a MHFA not have a duty of confidence? See Kloss OH Law, 6th edition, page 311.
Interesting article exploring the role of MHFA folks and legal liabilities of businesses using them.
But the entire piece seems to be based on the erroneous assumption the HSWA 1974 covers Mental Health in its duty of care. It does not.
The recent e-book by SHPs Mark Glover contains an article specifically addressing this point. It traces the history from Roben’s through the passage of the act through parliament through to case law. As much as folk want to stretch the coverage of the HSWA 74 to MH, it doesn’t do so, neither does the HSE have the legal remit to do so; that was explicitly excluded by parliament in 1974.
Diana Kloss – thank you for your comment but a MHFA does not have the same rights governed by the British medical council as a qualified medical practitioner. They do not diagnose, neither do they decide on treatment. Their role is legally passive in this regard. That is why I was musing as to whether they are in fact a company agent. As I say this, to my knowledge, is presently legally untested.
Dom Cooper – thank you for opening a debate. Personally I would disagree with your stance. It is true the Robens Report in 1972 could not decide whether OH issues/challenges should be addressed in the workplace or the NHS. He left it to the government to decide (the NHS argument won). That is perhaps the exclusion you refer to.
As for your interpretation of HSWA74 coverage of OH and psychosocial risk. Many would disagree with you. The power of HSWA74 is, through self- regulation, to future proof UK law by accommodating new OSH risk as it arises in our changing workplaces. Psychosocial harm caused by work is no different. How can the topic not relate to the creation of safe systems of work? Safe phsycologically and physically. Furthermore under tort law you cannot set out to deliberately or negligently cause another harm.
In any case I have observed leading OSH lawyers debating and posing the same arguments as I express in this article, and HSE Regulators too. I am content with that.