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An employer’s duty of care and legal responsibilities for mental health at work

As an employer, you have a legal duty of care for your employees: here’s how to make sure your company is correctly following mental health and employment law.

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What is the legal position on mental health at work?What is your duty of care for employees?How does Spill support your employer duty of care?Does Spill fulfil your employer duty of care for mental health?

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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.

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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:

Health and safety responsiblities Description Examples
Working environment Your employees must have a safe and healthy working environment - Making sure offices don't have trip hazards
- Making sure you have an anti-bulling policy
- Making sure you have adequate mental health support
Training for your teams You should provide adequate training so your team can do their jobs safely - Specific training for equipment used by your employees
- Manual handling training
- GDPR and cyber awareness training
- Mental Health First Aid training 
Equipment, facilities, and protection Your teams should have (free) access to anything they need to work safely and it must be well looked after - Laptop, keyboard, mouse, monitor, ergonomic chair etc.
- Reasonable adjustments for anyone with a mental health condition, e.g. flexible hours for someone who struggles with anxiety during commuting hours
- Flexible working, mental health days, and 1-2-1s to five everyone the autonomy to look after their own mental health
Unreasonable risks You should protect your staff from unreasonable risks by explaining how risks will be managed and by who - Recording phone calls to protect customer support teams from the risk of abuse by customers
- Providing mental health support to protect the content team from the risk of being affected by triggering content
- Offering ergonomic workstations and assessments to protect workers from the risks associated with poor posture, repetitive strain injuries, headaches, and back or neck pain
Supervision Your employees must have suitable supervision to protect them from harm - Monitoring working hours to make sure no one is continually overworked
- Setting up a proper plan for taking holiday and encouraging everyone to take the full amount of time off
- Implementing a right to disconnect policy
Workplace-related health problems You should watch out for work-related health issues and take steps to prevent them from getting worse - Implementing standing or walking meetings to encourage regular breaks from sitting down
- Supplying hand sanitiser and antibacterial wipes for employees to wipe down their desks and prevent the spread of germs
- Providing proper mental health support to help staff deal with work-related stress, burnout, or other mental health challenges

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.

See how Spill works

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 corporate 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.

A screenshot of the Spill app menu in Slack
Employees with access to Spill have the option to speak to a therapist for a single session or book a longer course of therapy

🧠 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 Safety Net proactively checks in with your team and flags anyone who might be struggling with their mental health

❌ 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.

Health and safety responsiblities Description How Spill can help
Working environment Your employees must have a safe and healthy working environment Spill provides confidential therapy with highly-qualified and experienced therapists, and asks people how they're feeling each week. You're able to see the overall themes, meaning you'll know sooner rather than later if your working environment takes a dip, giving you time to do something about it.
Training for your teams You should provide adequate training so your team can do their jobs safely Spill's 'Ask a Therapist' feature can be used by managers to help understand how to hold conversations with employees experiencing poor mental health, how to unpick tricky issues regarding mental health and poor performance, and many other bespoke topics that might be hard to cover with one-size-fits-all manager training schemes.
Equipment, facilities, and protection Your teams should have (free) access to anything they need to work safely and it must be well looked after As a Slack or Microsoft Teams integration, your team can access Spill whenever they need it with the opportunity to message a therapist, book a one-off session, or start a series of sessions, they can choose the kind of support they want during a tough time.
Unreasonable risks You should protect your staff from unreasonable risks by explaining how risks will be managed and by who Spill can help with unreasonable risks in some teams e.g. a higher propensity to burnout in the sales team or a risk of abusive calls in the customer support team, but Spill shouldn’t be a replacement for a proper plan to minimise these risks in the first place.
Supervision Your employees must have suitable supervision to protect them from harm Spill proactively reaches out to your team to check how they’re doing, and if someone appears to be struggling, they’ll get a tailored response written by a (human) therapist and may even be directed towards a confidential therapy session.
Workplace-related health problems You should watch out for work-related health issues and take steps to prevent them from getting worse Spill’s Safety Net feature checks in with your team, giving you a regular (and anonymous) read on the whole team’s mood so that you can spot company-wide trends and take action before they build up even further.

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.

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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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