Here's how to make sure your company isn't breaking the law when it comes to employee mental health.
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The law has always been notoriously slow to catch up with cultural change.
In the U.K., gay marriage was only legalised in 2014. Smoking in workplaces was only banned in 2007. Marital rape has only been illegal since 1992.
So perhaps it's not that surprising — although it's still disheartening — that the law doesn't currently require employers to do much in terms of actively protecting employees against, or supporting them with, poor mental health.
There are two key areas of mental health in which U.K. employers have clear legal requirements:
(There are some other areas of mental health in which employers have what the government calls a 'duty of care', but we'll come to this in the 'moral responsibility' section, as there isn't clear legislation in place... yet).
We'll go through each of the two areas of legal requirement in turn, before moving on to the policy templates in full.
Many of the laws relating to employers' responsibilities around mental health specifically refer to anyone with a mental health condition that meets the protected characteristics of a disability. Let's look at what that means in a bit more detail now, because it'll come up a few times.
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
— Equality Act 2010
'Substantial' = goes beyond the normal differences in ability which may exist among people.
'Long term' = it has lasted, or is likely to last, at least 12 months.
'Normal day-to-day activity' = something a person does regularly as part of a regular routine, for instance using a computer, working set hours, travelling alone, or interacting with others.
There's more detail on what does and doesn't constitute a disability in the UK government's accompanying guidance document to the Equality Act 2010.
There are many types of mental health condition which can lead to a disability, including (but not limited to) depression, bipolar disorder and schizophrenia.
However, having one of these conditions does not mean automatically that a person has a disability. They also need to meet the broader definition of a disability above.
If you're unsure about anything on the topic of mental illness, disabilities and discrimination, you can get free and impartial advice by calling ACAS on 0300 123 1100, or by emailing Mind's legal advice team at email@example.com
Beyond avoiding discrimination against those with a disability, taking reasonable steps to protect employees against undue stress is the other primary area of mental health employer law.
When it comes to stress and working hours, the Working Time Regulations Act 1998 allows employees to opt themselves out of the 48-hour working week limit for regular full-time work, which employees in many startups and fast-growing companies most likely do. However, employees cannot legally opt out of the 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.
When it comes to stress at work more broadly, the Management of Health and Safety at Work Regulations 1999 require employers to take specific action:
The law's tangible requirement for employers is to carry out a stress risk assessment and take action based on it.
Essentially, the stress risk assessment is the modern, office-based equivalent of the age-old physical risk assessment. Workplaces in which predominantly physical work is carried out — factories, for examples — are required to make sure steps are taken that prevent people from inhaling fumes or dropping something heavy on their foot. For workplaces in which people are carrying out knowledge work, employers need to make sure steps are taken that prevent people from unreasonable levels of stress.
Next, we'll move onto the first of the two specific policy templates to help companies meet their legal requirements: a mental illness discrimination policy.