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- Employers in the UK must be compliant with the Equality Act 2010 and Health and Safety Act etc 1974, and also have a legal duty of care for their employees.
- This is known as an ‘employer duty of care’ and means protecting the physical and psychological health, safety, and welfare of your employees (and others) while at work.
- To fulfil your employer duty of care, you must make a proactive effort to find out about an employee’s wellbeing and provide individual support.
The law has always been notoriously slow to catch up with cultural change. In the UK, gay marriage was only legalised in 2014. Smoking in workplaces was only banned in 2007. Marital rape has only been illegal since 1992.
With that in mind, it’s perhaps not that surprising — albeit quite disheartening — that the legal mental health rights at work don’t currently require employers to do much in terms of actively protecting employees against, or supporting them with, poor mental health.
Let’s find out more about what the legal responsibility for mental health requires employers to do, what ‘employer duty of care’ really means, and how mental health solutions like Spill can help you meet your employer's mental health obligations.
What is the legal position on mental health at work?
When it comes to mental health and employment law, there’s not so much a mental health at work act but rather, employers in the UK must be compliant with the Equality Act 2010 and the Health and Safety Act etc 1974.
This means there are three key areas of mental health in which UK employers have clear legal requirements for mental health in the workplace:
1. Employers cannot discriminate against any employee (or candidate) with a mental illness that classifies as a disability
Many of the laws in the UK relating to mental health rights at work specifically refer to mental health conditions that, as outlined in the Equality Act 2010, classify as a disability:
A mental health condition is considered a disability if it has a substantial and long-term effect on a person's normal day-to-day activity.
Here, ‘substantial’ means going beyond the normal differences in ability that may exist among people. ‘Long-term’ means it’s lasted, or is likely to last, for at least 12 months.
And ‘normal day-to-day activity’ refers to something a person does regularly as part of their routine (e.g. using a computer, working set hours, travelling alone, or interacting with others).
Many types of mental health conditions can lead to a disability, such as depression, bipolar disorder, and schizophrenia. But having one of these conditions doesn’t automatically mean that person has a disability. To be classed as having a disability, they’ll also need to meet the broader conditions set out in the definition above. It can be tricky to decipher, we know: the UK government’s guidance document to the Equality Act 2010 is a good place to get more information on what does and doesn’t constitute a disability (in the UK).
Spill’s advice 👉 Audit your hiring, onboarding, and working practices to make sure they avoid discrimination.
2. Employers must protect employees against undue stress
Work is the most common cause of stress, with 79% of people affected by work-related stress. It’s the employer’s legal responsibility to protect their team from undue stress (i.e. an unreasonable amount of stress).
There are two legal regulations in play here.
1. The Working Time Regulations Act 1998
The law on working time, this regulation sets rules for the maximum number of weekly working hours, the right to rest, and holiday entitlement in a bid to give workers adequate rest. Under these rules, employees can choose to work more than the 48-hour working week, but legally, they have to abide by other statutory minimums like the right to 28 days of holiday a year (including bank holidays) and the right to at least one 20-minute break for every working day of six hours or more.
2. The Management of Health and Safety of Work Regulations 1999
Focusing on stress more broadly, this regulation legally requires employers to take specific action in response to a stress at work risk assessment. This type of assessment examines what the main causes of workplace stress might be, who’s most likely to be affected, what the company is doing to control the risks of job stress, what further action is needed, and who’s responsible for each action.
Spill’s advice 👉 Carry out a risk assessment for stress at work and take action based on its findings.
3. Employers have a legal responsibility to ensure the wellbeing of their employees
For UK-based companies, there’s also a legal responsibility as an employer to ensure the wellbeing of your employees. This is known as a ‘employer duty of care’ and is what we’re going to focus on for the remainder of this article.
Spill's advice 👉 Read on to find out how Spill can help you in your duty of care to your employees.
Download our workplace mental health policy template
Meet your legal mental health obligations as an employer by using this template to build your own workplace mental health policy
What is your duty of care for employees?
As an employer in the UK, it's your duty to protect the health, safety, and welfare of your employees. That means doing whatever you can (within reason, of course) to protect your workers from any risks arising from work activities. Keep in mind this doesn’t just mean physical risks: emotional and psychological risks are just as important to your team’s physical health, safety, and welfare. For example, just as you make sure workers in a factory need to wear protective gloves and eye shields if they’re working with drills, you need to make sure desk-based staff have adequate protection against psychological risks such as burnout, undue work stress, and anxiety.
An employer’s duty of care is to protect the physical and emotional health, safety, and welfare of your team and others while they are at work.
The Health and Safety at Work Act is the main legislation covering an employer’s responsibility for mental health and safety in the UK, which sets out the duties employers have towards employees and members of the public, as well as the duties employees have to themselves and to each other.
As an employer, you need to consider:
While a lot of the language used in health and safety information evokes images of building sites and factory floors (i.e. practical jobs that really do come with great health and safety risks), it's important to remember that your employer duty of care also extends to desk-based teams: the hazards might feel smaller but the welfare of your team is just as important.
Employer duty of care: the small print
We stumbled across the interesting legal case of Intel v Law in 2007, which we think highlights the grey area in terms of duty of care for employees perfectly.
An employee experienced a breakdown caused by chronic depression as a result of her excessive workload. While the company said that the employee failed to access the external counselling services in place, the Court of Appeal disagreed, saying that an employer’s short-term counselling wouldn’t have reduced the risk of a breakdown because it wouldn’t reduce her workload.
This decision marked an important moment: the Court of Appeal made it clear here that despite having support systems in place for staff, management failed to combat known work-related stress. And that means they failed to discharge their duty of care for employees.
In short: when it comes to your employer's duty of care, your company needs to make a proactive effort to find out about wellbeing and provide individual support to those who need it.
Spill gives your team quick access to high-quality workplace therapy in just three clicks.
How does Spill support your employer duty of care?
According to the Health and Safety Executive’s 2021/2022 statistics, 1.8 million working people suffered from a work-related illness. And of that number, a massive 50% of workers experienced work-related stress, depression, or anxiety. It’s a sorry state of affairs but the good news is, the right kind of mental health support can help you in your duty of care for employees.
Enter Spill.
Spill is a platform designed to care for your team’s mental health by providing immediate access to talk therapy. If you didn’t watch the video, here’s the tl;dr (although, truly, the video says it so much better):
The world is facing a mental health crisis and modern working life is a big part of the problem. Companies make their money from employee brainpower, so we believe they should be paying for mental health support to protect their employees’ brains. And that’s why Spill was born: to make offering mental health support super easy.
But while that’s all great news for your company, what does it mean in terms of your employer duty of care?
💙 Spill lets your employees support their mental and emotional wellbeing
The counselling offered by Spill helps your team manage personal or work-related issues that may be affecting their ability to perform their job properly. Learning to manage their emotions can in turn help reduce the likelihood of accidents or incidents. For example, someone experiencing anxiety might be struggling to sleep at night and a lack of sleep can lead to sluggishness, brain fog, slow reactions, difficulty concentrating, and reduced problem-solving skills. By booking counselling sessions with Spill, that person may be able to manage their thoughts enough to finally get some proper rest. And in case you’re wondering: counselling at Spill is entirely confidential.
🧠 Spill helps your team understand their mental headspace
For someone in the midst of a mental health challenge, it can be difficult to understand what’s happening. Feeling on edge, a racing heart, lethargy, or difficulty sleeping, concentrating, or controlling emotions could all be signs (among many others) that someone is struggling. Spill offers a safe space for your team to take their emotions and figure out what’s going on. Together, with one our experienced counsellors, they’ll explore their thoughts, feelings, and behaviours to get a place of understanding. And from here, they’ll learn tools and coping strategies to help them navigate the demands of their work and personal life.
🔎 Spill helps you find and manage potential workplace hazards that could impact the mental health and safety of your team
Spill Safety Net is a proactive tool that asks your team how they’re feeling each week (and don’t worry, responses are confidential). As well as letting your employees track their mental health over time, you’ll be able to spot any sudden shifts in the wider company’s mood. For example, if the percentage of people reporting feeling stressed suddenly increases, you might have a workload problem that needs addressing. Plus, you can benchmark your team’s mood against all other teams on Spill — we work with 600+ companies, so you’ll get a pretty good idea for what’s average. The cherry on the cake for Spill Safety Net is that for any employee whose mood dips or is consistently low, one our counsellors will personally reach out to them to offer support.
❌ Spill helps reduce the stigma around mental health
A company that uses Spill is committed to providing a mentally safe and open working environment. Spill brings mental wellbeing into the heart of your team, helping normalise therapy and open up the conversation around mental health. A company with a more honest and open culture around mental health is more likely to engage with mental health support, and that in turn, will help reduce the number of workplace accidents and risks.
🤓 Spill provides training to managers and supervisors to help them spot signs of mental health issues in their team
As an employer, it’s your duty to help your team with (and prevent) work-related illnesses, both physical and emotional. Our list of external providers helps you find the talks and training to create a more psychologically safe working environment. By upskilling your managers and supervisors to spot signs of distress or mental health challenges in their teams, they can help their reports access the support they need. A company with a more honest and open culture around mental health is more likely to engage with mental health support, and that in turn, will help reduce the number of workplace accidents and risks.
🗓️ Spill lets your team access counselling whenever they need it
At Spill, we’re proud that we have no waiting lists: anyone in your company can book a counselling session (or sessions!) whenever they need it. In many cases, there could even be a same-day appointment available. At the most, they’ll have to wait 24 hours: a far cry from the multi-day waiting times for counselling with most other workplace counselling services. This accessibility means your team can get timely support, reducing the risk of their mental health challenges from escalating. Plus, as a Slack or Microsoft Teams integration, your team can access Spill easily, without the need for another username and password.
Does Spill fulfil your employer duty of care for mental health?
Remember that table from earlier? Well, here it is again but this time, we’ve added a handy column highlighting just how Spill can help you with your duty of care for employees.
Clearly, Spill has many features that support your employer’s duty of care for mental health and wellbeing, but it shouldn’t be a replacement for a proper plan to minimise these risks in the first place. Remember: to fulfil your duty of care for employees, you must make a proactive effort to find out about an employee’s wellbeing and provide individual support. We’d recommend getting proper legal advice to make sure you’re covered.
To fulfil their duty of care, a company must make a proactive effort to find out about an employee’s wellbeing and provide individual support.
For more thoughts on looking after your team, check out our list of 51 actionable initiatives to improve your team’s mental health and wellbeing. Your employer's duty of care is an important responsibility, so take the time to really think about how you can look after your team (and yourself!) in the kindest and safest way possible.
Download our workplace mental health policy template
Meet your legal mental health obligations as an employer by using this template to build your own workplace mental health policy
Spill Therapy reliably reduces mental health symptoms in 72% of cases and can be accessed by anyone on your team.
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