Creating a culture of positive mental health and wellbeing for employees is high on the agenda for businesses.
But with the third lockdown, working from home and homeschooling adding to the stresses of life, more people are suffering from poor mental health, resulting in long term sick leave. How can employers remain sympathetic, while still operating a successful business and steering clear of any claims for disability discrimination?
We are delighted to have guest speaker Rachel Cutler, business psychology consultant, psychotherapist and executive coach joining us to discuss the benefits of incorporating mental health support in the workplace; and Matt McDonald – partner in our employment team – covers the employment law considerations.
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Webinar transcript
(Please note this is auto-generated and un-edited)
Good morning everyone. Thank you for joining us for this webinar. What am I going to look at when a mental health condition becomes a disability and managing mental health in the workplace. I'm delighted to be joined today by Rachel Cutler, Business Psychological Consultant, Trainer, and coach for us here at Shakespeare Martineau.
0:33
Before it comes to my bed sheet, right. She's going to go first, and she's going to look at identifying the key mental health issues that we see in the workplace.
0:41
Some of the ways in which these health issues emerge the expression in the workplace, and, importantly, what the business can do to provide support for those who are struggling with poor mental health. And my name is Mark McDonald Opportunity. And after Rachel's fit, I'm going to come on to look at what the legal definition of disability And how that sits with mental health conditions specifically. I'll also touch upon some of the key legal risks in terms of claims that can be brought employers get it wrong in this area. So without further ado, I'll hand over to Rachel.
1:14
So good morning! How are you feeling?
1:17
You'll probably tell me you're filling fine. We go through this every morning.
1:22
So what I'd like you to do, is: take a pen and a piece of paper that you have handy, or your computer, or your phone, which you should have handy, and answer these two questions.
1:33
If you were a soul today right now, what would you be if you a waiver today, what would you be?
1:43
And if you were a superhero, what would you be for those people who haven't got young sons, and haven't been made to watch Marvel?
1:54
Films, um, make up your own superhero.
1:58
You'll be fine. So those things have to do.
2:01
There's like a gut response, so that we learn something about ourselves today, so for example, my songs sunshine on lease, Scottish, drumming, upbeat, about love, as is everything, whether sunshine and clouds I'm hedging my bets clearly there and my superhero, I think I try like the idea of somebody very clever and sophisticated.
2:24
But I always end up with Captain Marvel because she's strong, OK, so that's a little bit about Me, Too, OK, so thank you for playing that game, if you can listen to me and carry on playing the game, that's amazing, you've probably got some level of attention, hyper activity, and good for you. Use your skills.
2:44
Use your powers some statistics for you on mental health in the workplace.
2:51
A sixth of the workforce right now will be experiencing mental health problems.
2:57
So, that's quite a number of the people on this call.
3:01
Whether they talk about it or not is a different matter.
3:05
Stress, anxiety, and depression are responsible for almost half of all working days lost in Britain to ill health, so that's half.
3:18
The cost of British business is £45 billion a year.
3:23
I'm getting these figures from Deloitte, their Mental Health and Employees research document that they produced in January 2020.
3:30
So, given that we've had this locked down since then, I'm sure the figures will be much higher.
3:37
You can also go to mind the excellent to get information off in the Mental Health Foundation. Have some very good research.
3:44
Here's some statements for you Think now.
3:47
Working from home and this was before the lockdown has created an always own culture and this has a negative impact on workers' well-being.
4:00
Second statement this culture contributes to presenteeism. What's presenteeism?
4:06
It's when we go to work when we're not very productive.
4:11
Mean, there's very many otherwise could not but return and we shouldn't be there. And quite often when we're suffering ill mental health, we will still turn up to work.
4:20
A bedfellow of presenteeism is leaving some according to Deloitte. And these are the two issues the us making, which is business suffer, if you like. So people are suffering and the business is suffering, because people, when they indulge and leave isn't they take leave and they use that leave to do extra work that they feel they need to do.
4:44
So these are all issues that will bring fullwood, negative well-being, poor mental health in your workers.
4:53
What are you most likely to encounter?
4:58
Excuse me, What are you most likely to encounter in the workplace, in your role?
5:05
three things: stress, anxiety, and depression, and the remainder is going to send you out the piece on that.
5:14
I've given a document about the basics of those three mental health issues.
5:19
Because don't have the time to go into them now, and that would be done for you as well. But have a little look at that. That's the homework I've set. You don't have to do it. The dog can eat it. But there, it's there, feel, free to peruse.
5:32
Stress very quickly is something we all feel is something we need to fail to perform well. Quite often there's no good standing at the beginning of the hundred meter line, the feeling indifferent about what's happening today. You need an element to stress. We need an unlimited stress. We enjoy an element of stress in many areas of our life.
5:51
When it goes beyond a certain hump, the Nixon hump, you might notice something else. That stress starts to work against us.
6:01
We've become overwhelmed, We can't think clearly, we break down online's break.
6:08
If you've jumped too long on one ankle, it will break. Same is true of all mental health, it breaks.
6:15
So, stress is useful until it becomes negative stress.
6:20
And it becomes a concern at work because you can't manage what you're supposed to be doing. That's what you'll see. You'll see the behaviors around overwhelm, around fear of the work day, around disorganization of thoughts and disorganization. In terms of managing their own workload, you feel if you were talking about work.
6:43
Anxiety is really fear in limbo. And it's one of the most paralyzing mental health issues that we can suffer for.
6:52
Most of all of us will have suffered from stress. Many of us will suffer from anxiety at some point.
6:58
And anxiety is very difficult to manage once it gets hold of you. So that's why it's really important to pick up stress early on.
7:05
So there's a business you need to be looking out for it. Nice and early.
7:08
Anxiety is when we don't trust the world.
7:14
So we imagine that there's something we need to have all mix up full.
7:19
We're up against X something's coming around the corner.
7:23
You cannot trust the unknown. And that is generalized anxiety that we can take to work to the home. We can take outside and I think in lockdown that has become a cubed.
7:35
So you will find in your workers today, um, the details of anxiety, again, on the on the worksheet, depression.
7:43
Now, depression isn't about isn't about feelings, in fact, it's not about feeling really sad, plus good, we need to feel sad. Some things are very said, We need to express them.
7:54
What you tend to find When depression occurs, it will be a numbness.
8:00
I don't mean difference to life, a lack of joy of life, the basics of life, sleeping, drinking, eating, having ***, all the things that make our lives worth living.
8:11
So, that is an issue for the workplace in that you can't really attend to it in the workplace.
8:19
So, when you find somebody clinically depressed, that signpost time that's somebody else's gig and you need to support them in that, OK? Once again, depression details will be on on that form.
8:33
Um, I think in response to these issues, business has got two roles and first role is to get ahead of the game.
8:46
So, what you need to do is to embed in your culture, in your policy, in your attitudes, and your actions, in your language, statements, around your belief that mental health matters, Good mental health matters. And at the same time, that poor mental health will occur.
9:06
And you get it, and you understand, and you accept it, and you'll be there to support people through it. So, that's the first, first bit of business, I think that you should do, is to get embedded in your culture.
9:18
Um, ways to do that.
9:21
Training, 49% of staff say that they wouldn't talk to their team leader about the mental health issues that solve the workforce, aren't talking to you about it.
9:32
So training, training on trust, training on good leadership, training on team, shape, these are really useful things. Training on resilience is all live useful, things like training.
9:45
Embed it.
9:46
Connect with somebody who may be, is somebody who's in the public eye, who can come and talk to your folk about their mental health illness.
9:56
It's always good to have somebody who's done it and done it publicly, makes it easier for us and we can identify. Create mental health champions within your group, within your business, within the teams.
10:08
Get to Mental Health First aid is in the first port of call for many people, and sometimes that's all you need. If you're feeling a little bit overwhelmed, especially, you could talk to your Mental Health First Aiders.
10:20
And if you're leading in some capacity in your business, tell your story.
10:27
Because there'll be many people on this call who have had mental health issues.
10:31
It is just the statistics out there, and let us talk about ..., so share and other people who share model what you believe and other people will behave accordingly. Secondly, is to support poor mental health.
10:46
To those suffering from poor mental health, when they are brave enough to bring it to your attention.
10:52
So Listen, Validate, Engage, act, Listen, validate, engage, an act.
11:04
First, things we need to do is hear about the story is, secondly, we need to tell them, we believe them, And we believe in them. Third thing, is to say, ask questions to engage. What do you need from us? What can we do for you?
11:17
What would help you, and then to act on that, do what you can as a business to support this person, so that they can come back and play and be a part of your organization.
11:28
So, once again, use your Mental Health First Aiders to support. Use your HR BPS use coaches and counselors.
11:39
When it's beyond your capacity, signposted effectively, and always, always maintain the connection with those people who have come to you, asking for help. Don't drop them.
11:51
If it was a leg, if I broke my leg, you'd say oh, I'm sorry about that, What can I do for you?
11:57
When can you come back and what you need in the offices? to change to the chair? What you need at home, what can I provide for you?
12:04
And then you check in with them.
12:06
You check in with them a couple of weeks, like how is the like?
12:10
Mentioned, maybe, the boot on there.
12:12
That's not be afraid of mental health that's attend to it, and give people a chance to feel better.
12:19
one last thing, I'm not sure I'm just about to look at the time. Huffman.
12:25
People in distress, mental distress sometimes only have left their responsibility for themselves. So as much as a business, or as a human being, you want to take responsibility, takeover, and fix everything for this person.
12:42
You can't be, you shouldn't, it might be the last thing they have.
12:46
They can do the choice about what to do next with themselves. So keep those keep caring. Keep being compassionate but the responsibility for their own decisions live with them.
12:59
OK, thanks for listening. Passing over to Matt macdonald on the Subject of Responsibility.
13:05
Thanks Rachel, that was actually fascinating. I'm not gonna touch South, boring everyone with a load of law, so apologies in advance for that.
13:14
But suppose saying is the topic was, when it's a mental health condition or disability, you can't really avoid it, unfortunately.
13:22
On the slide, the legal definition of a disability, physical, mental, just to remind everyone that, and there's four key questions that we bring from that, which I'll take into. So does someone have a mental impairments?
13:37
Now, that's just the first stage, and as Rachel talked about, even answering that question can sometimes be difficult because it is 49% stuff.
13:45
She quoted where openly tell their manager that if they're suffering from poor mental health, say right. at the first hurdle, we can see just how tricky. And actually, this can be incentive identifying when someone has a mental condition at all, never mind something about their disability.
14:05
Once, assuming you do know, or suspect perhaps the best way of putting it, but someone does have a medical impairment, does not have an adverse effect on their ability to carry out normal day-to-day activities. Our reminder here, that normal day-to-day activities, is it to be very broad phrase. It's not intended to be work related, to particularly, albeit, work related tasks become counts as normal day-to-day activities. But, it could be, anything, go to the shops, discomfort or all sorts of things.
14:33
And, you know, as I'm sure when you got the fact sheet that Rachel circulate, sorry that were circulating on the back of this webinar, you'll see, there's all sorts of ways in which poor mental health can really impact on it. So, very much, an important question to ask yourself, and I think there is a tendency, sometimes to focus on whether someone can actually do their job, as opposed to looking at the broader picture, in terms of general day-to-day activities.
15:04
Is the adverse effect substantial?
15:07
So, there's a little bit of help ladder if you like, in terms of understanding what, OK, there is a threshold that needs to be crossed here, but, again, it's, it's a difficult question.
15:19
How do you know when something is or isn't substantial?
15:22
Only the courts can answer these questions, ultimately.
15:24
But it's just a district that's really difficult want to tackle. Well, he can't put yourself in someone's shoes, necessarily, particularly when you look at mental health, as opposed to physical condition.
15:36
That's a difficult question to ask to answer.
15:40
Finally, is that effect long term?
15:42
Now, two elements to bear in mind about the gender justice, does it lasts for 12 months? But the second limit of that test, which is the one mixed, is the isn't likely to last for 12 months. So what that means is that condition doesn't have stupid lasted for 12 months in order to be a disadvantage.
15:58
It just needs to be likely to last for 12 months. And again, that's sometimes very difficult question to answer particularly in the context of mental health We're sort of set prognoses recovery are often much harder to come by them they might before upright. Like you said Rachel's example every January got a pretty good idea in terms of a bit of a window when someone will be back to being fully recovered?
16:21
So those are the four questions you're asking yourself whenever you're considering whether someone with a mental health issue is disabled, and they're all quite tricky every single element of that is, is tricky.
16:32
So you might say, well, how are we supposed to answer, how we're supposed to know, Well, there's an acknowledgment that your not expected to be an expert in this area, and that's why you will hopefully have medical experts that you can refer to, and it's why you should refer people to mental health experts. Ideally, a lot of employers will have generic occupational health providers who are a little bit like GPS in terms of having a really good, general understanding of all sorts of conditions, but not necessarily specialists, and that's the first port of, call, great. Absolutely. Use those, those resources. But often when you're looking at specific mental health conditions, it's a good idea to have some more specialist inputs.
17:16
And, hopefully, if you get input from someone more, generally qualified with an occupational health, they might even recommend that. specialist input.
17:25
So, you can take that medical advice, and you can place a fair amount of weight on it. I'll come on to come onto this, on the next slide in a minute.
17:35
Because ultimately, as I say, you're not experts, these people are so you can, to a significant extent, trust what they say, but that's not quite the same as saying that they can answer those questions.
17:50
Those four key questions can only ever be answered by an Employment Tribunal, ultimately, if you find yourself and tried to, you know, with an individual and there's a dispute as to whether that person is disabled.
18:02
It's not.
18:03
And you might say that's kind of ironic because Trump tribunal panels are experts anyway, but they're the ones after deal with a soap. So, they will ultimately make the decision.
18:11
The reason I'm making that point is, because if the medical evidence, particularly if it's from a generic practitioner within occupational health, or even a GP, if the evidence is that someone probably isn't disabled or doesn't meet some of these criteria, you can place an amount. A significant amount of weight in that. But it's not the end of the story.
18:34
You can't say, well, occupational health and not disabled, so not disabled, move on. It doesn't quite work like that. So you just do database for that.
18:43
So what are the main risks?
18:44
There's there are more types of disability discrimination, and I put on this slide here, but these are the main two that come up in the context of mental health issues.
18:54
First one is discrimination arising from disability. So that's when that in for a treat to work or unfavorably because of something I'm writing in consequence of the disability rather than the disability itself. Which is what a direct discrimination And that's usually the case because if someone's got any sort of physical or mental health issue, generally speaking, employers aren't going to treat them negative, because it was actually itself, it's going to be because of the consequences. So, for example, if someone suffering events will have lots of options.
19:22
It's the absence, that's usually a problem, likewise, 50 to poor performance. It's no stress, depression, anxiety, or whatever it is, itself, it's the fact that that's impacting on that performance. So that's why discrimination arising from disability is brought to you by the Equality Act in 2010, to tackle this. What was a bit of a gap in the legislation?
19:43
Now, that's not to say that if you treat someone unfavorably, that's the end of the story. You discriminate against you, there is a defense available for employers which is to show that the tree is proportionate means of achieving a legitimate and I'm not gonna go into the depths of that test for the purposes of today because I could probably fill half an hour just on that question. But it's a point to bear in mind that, for example, if someone does have an issue that needs to a lot of options, you can potentially still legitimate the knowledge. that person and ultimately potentially distress because of the options.
20:17
But you will need to show that you are being proportionate and that you're having a just A in doing so. So it topology exercise. A rough rule of thumb is that when you're dealing with a disabled employee, you can still manage them, but you do have to try it a bit more carefully because the lower ultimate that extra protection.
20:34
The last point there, and this goes to the occupational health point, and I was just talking about before.
20:39
This can only fight if you know, or reason to, have known that the individual in question was Disabled, safina estimate need to know, And there's no reason you should have known, then you can't be on the hook as an employer for discrimination analogy condition.
20:54
Now, the whole reason beach, and I was really important, if you bury your head in the sand and don't get expert input, then you'll almost always full file with that. because they tragi unification won't be, Well, how'd you got the input? You would have no.
21:09
So, you shouldn't, even where you get that medical input, if it suggests that someone isn't disabled, as I said before, treat it with a bit of caution.
21:19
And I've seen many search results with clients, where they've been very strong belief that view, that someone from a legal perspective, that someone is disabled, the occupational health has rather surprisingly, given the opinion that they are not the employers and said, well, that's OK. Because occupational health upset knowing that experts. It's not that simple. I have seen cases where tribunals have looked at things and said, no, you need, that was suspicious. The occupational health report looks a little bit questionable. You should have challenged it and push it further.
21:48
So, but that's why I was making that point before. That you can, to a large extent, reliable patient health. But don't just completely follow that advice. Be prepared to challenge it. Frankly, don't be shy of challenging the medical experts because you sort of obliged to do so if you have legitimate concerns.
22:07
Discrimination rising from disability, for you to make reasonable adjustments, so that you came to that person has placed a substantial disadvantaged by a provision, criterion, or practice. You've probably heard the phrase PCP use before by lawyers, but that's what we're talking about when we talk about PCPs. It can also apply for physical features. And thanks for item of jewelry aid, but most cases, I'd say 90%, plus evolve, that the ... advisor, really why concept the PCP.
22:35
It can be, generally, it suggests sort of policies practices, general approaches that you take, but it can also even apply to a one-off decision in relation to an individual.
22:47
So if somebody's face to substantial disadvantaged by that PCP, you as an employer have to take such that isn't reasonable to avoid that disadvantage. So, two key elements that, one, it has to be effective.
22:57
Sometimes people will ask for adjustments and you think, well, actually, that's not going to help, obviously, be cautious and gentlemen, it's up to you, but if that's the case, then it won't be reasonable adjustments.
23:07
Um, and the other thing is, the reasonableness is looked at in the context of the employer.
23:11
So, there is a bit of, if you'd like, help for employers, that it's as if something is unreasonable for you as an employer. You don't have to do it. Now, what is unreasonable?
23:21
There's all sorts of reasons. Something could be found to be a reasonable cost alone.
23:26
Just as a warning is very rarely going to be sufficient, unless you're talking absolutely huge cost. relative to your turnover and profit. Generally speaking, the court to take the key that you should be able to swallow the cost of, of making an adjustment.
23:42
So be very cautious if that's your only reasons for rejecting it. A better reason, frankly, is a some sort of operational problem. It's really difficult to accommodate button for the business to function properly. But exhaust Asian. I don't don't skim over these decisions.
23:56
Because if you find yourself in, trouble with them, tribunal panels will, for readiness, if you go through this stuff.
24:04
So, you do need to be at, to fight the corner. Finally, the same principle applies in terms of, this will only bite if you knew or briefly tonight, individuals' disabled And it actually goes further, and says that you also, each, that, we need to know that. They would be placed as such, disadvantage because of that.
24:19
But, again, be cautious as S you really do not want to rely too much on this. And certainly don't bury your head in the sand and say that, But we'll get you off the hook.
24:33
By that's the end of my book. That was a very brief summary of it, Hopefully useful one. We've got a few minutes left now. So Marina looks like within a few questions already.
24:43
Thanks, Matt. Yep. So the first question is, if someone has not ever had mental health issues in the past, but have become corrupted scared, and been off lack since August 2020, would they be classed as disabled?
25:00
Quite possibly. Say, Yeah, but there's, obviously, mental health issues can come out of nowhere, sometimes for no particular reason.
25:10
So, because there's no history of mental health, that doesn't necessarily mean that someone can't now become ill in that sentence and amount to a disability. You've got the 12 month, long term test that I talked about. But again, each case.
25:24
Whether that is likely to last for more than 12 months. So even though someone may only have to come in, all this stuff doesn't mean that went out in February. It doesn't mean that couldn't be a disability.
25:32
And, frankly, the closer you get to a year, and the more severe the condition is during that time, the more likely it's going to show you there were 6, 7 months past that date now.
25:44
Is it likely? Especially one way to look. It will be to flip it. Say it. likely, they're going to cover in the next few months, potentially, Not, Yes, I'd like to, end of the tunnel, which might help, but again, it's, I'm cautious caution about.
25:59
Taking the assumption that, because this has been triggered by a specific event, I cope with all the consequences of coping, and working from home, etcetera. Don't assume that, when that goes back to normal these people are suddenly going to go, Oh, great, feel fine now. And crack on, because it could still have a long lasting effect. Well past the point where normality is being stored.
26:20
Rachel, anything you'd want to add on that?
26:23
It's difficult, isn't it? I mean, I think that the idea of, did they say cozy, scared?
26:29
Yeah, that's correct. Yeah.
26:31
I think that that's gonna the impact of the Cove it's locked down on mental health is going to be something you're going to have to you're going to have to deal with.
26:42
And I think the second second point is, you know, be compassionate first and worry about the detail later. That's not in terms of what Matt was saying about, you know, let's not that it's not called a year a year.
26:57
I mean, that seems to be evidence shows if you can get ahead of this business, so start thinking about it before people come to you.
27:05
That people will be having issues around things like the lockdown.
27:09
The quicker you can get into helping people in supporting people unflagging up the, you know, the fewer hours if you want to put it brutally you're going to lose.
27:21
Thanks, Rachel, remain, if you're trying to get one. Or two more orange before, Yeah, yeah. So if a line manager knows about a mental health condition, because they knew the employee essentially like the employee has never told the employer in Peoria reporting policy, will that kind of knowledge of a disability?
27:42
In short, yes, potentially it can.
27:47
Yeah, I'd extend to the legal angle if that is essentially not yet, that there's no particular distinction, as to what knowledge is knowledge is imputed to the employer, which is quite an old concept. Draw them in individuals', because ultimately to individuals who will now, so, it's a slightly strange concept. We, I think, if someone knows, or at least strongly suspect, even if that comes our attention outside work. And I don't think you could run an argument that well, because they'd have eventually in work. I have no idea.
28:16
Right. So any thoughts? More on the practicality, just like start at a much nicer tricky, Schneider probably comes up quite a bit. And I was just thinking about that about something like if a mental health first aider recognizes something, you know.
28:31
But that co-leaders has talked to another colleague and not them, doesn't want anyone else to know about. It is quite difficult.
28:38
You know, to force your, your knowledge on someone. They know, we're so, feel so concerned about expressing mental health issues that to have acknowledged without your consent can be quite difficult.
28:53
And at the same time, I completely get that, you know, when, you know, somebody is suffering, how can you pretend, just because we're in another context, you don't really, how can you say that you don't really notice? It is tricky, and that, and issues around confidentiality When people impart knowledge is something to consider.
29:12
In this context that mental health First Aiders, for example, have to keep things anonymous unless they think somebody's going to hurt themselves or someone else. So, it's much more of a tap dance, I think, than physical health is.
29:26
It's a really tricky issue that I've said, you come across it quite a bit where you have people even if they've done not necessarily in a social outside work complex.
29:34
But they might have confided in a colleague within work, but then they really don't like, saying, I want you to keep up that confidential or sometimes even maybe a kind of Middle Manager, perhaps not their line manager, someone else. And it's a really difficult situation to put yourself. And I've always found as much dialog between individual as possible is generally get you to the best outcome, but the issue is really tricky.
29:54
Until I can just say one more thing on that is, as a business, you provide the context of where people are expected and allowed to mental health, but that happens less and less.
30:06
So the greater trust there is in your team leader, your team, the business around this, the less problems you're going to get with conference confidentiality.
30:15
Agreed.
30:17
Alright, well, we have got some more questions. I can see, but unfortunately it's now. two minutes ... time and get not eat into your day. So, what we'll say is that any further questions that we haven't answered there, we will respond to the individual separately in writing over the phone call. So, everyone will have their questions answered. So that brings us to the end of the webinar, have found it useful and relevant, Massive, thank you to Rachel for joining us today. I found absolutely fascinating person and I'm gonna be going, When I'm doing my homework. And, if you've got any queries on this issue.
30:51
Which is hugely tricky and it has only been brought into sharp relief by ..., and then always healing. And always happy to help many queries you may have. For those not able to make it your colleagues, friends, whatever who might be interested by this webinar, it is going to be recorded, or it is being recorded and will be posted on our on demand page on our website, along with all of our other webinars.
31:14
Also, just quickly a quick plug for our next webinar, which is on the 21st of April, which I would've had a haircut, we'll be doing by re hire exercises that will be me and my colleague, Kevin, huge. Covering not just dismissing them re-engagement.
31:28
Exercises what you've been in the news a lot recently, particularly with big companies, arguably being using them as an excuse NKVD, next, use your auditor to force through changes in ... all over them, like a rush, So, quite hot topic. I think that's everything for me, So I just want to say thank you for joining, and have a good day.
31:48
Thank you.
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