Academia and Mental Health – minimising the risk
You can read my previous article here.
This bulletin looks at where the law appears to be heading on employers' legal duty of care towards employees’ mental health and what can be done to cope with mental health issues in the workplace.
Where is the law going?
In the recent appeal case of Croft Vets Limited v Butcher, Mrs Butcher, an office manager worked in role which even the employer accepted was “multi-faceted” and “not sustainable” for one employee. Eventually Mrs Butcher went off sick with work-related depression. A private consultant psychiatrist, paid for by the employer, recommended Cognitive Behavioral Therapy (CBT) to assist Mrs Butcher deal with what the psychiatrist considered to be work-related stress. The psychiatrist said that there was no guarantee the treatment would enable her to return to work.
The employer did not respond for three months to this recommendation, and in the meantime Mrs Butcher resigned and claimed constructive unfair dismissal and disability discrimination. The Employment Appeal Tribunal (EAT) upheld the employment tribunal judgment in her favour and agreed that the employer should have made reasonable adjustments and should have paid for Mrs Butcher to have private psychiatric counselling and CBT.
The appeal tribunal accepted that:
- The reason why Mrs Butcher was off work was job-related, and payment for medical treatment would be “support” to assist her to return to work and cope with the disadvantage that she experienced – it was therefore a "reasonable adjustment" under disability legislation;
- There was a reasonable prospect that if the suggested adjustments were made they would have been successful;
- The employer should have addressed the proposed adjustments with her.
The EAT emphasised that this did not mean that employers are required generally to pay for private health care; but this employer had breached its duty of care to Mrs Butcher, whose health difficulties had been caused to a large extent by her job.
This case overlaps with a 2004 Court of Appeal case which states that employers who may have caused employees’ physical or psychiatric injury may be required to pay sick pay over and above the contractual allowance as a reasonable adjustment (Nottinghamshire County Council v Meikle).
It is increasingly clear that there is a shift, endorsed by the higher courts, towards placing the onus on employers to reduce the risk of stress-related conditions. If this is not done, the employer will need to pay for adjustments to enable employees to perform their role, or pay for additional sickness absence if they cannot.
How Colleges can minimise risk
Our previous bulletin discussed the three barriers to overcoming what many see as a culture of acceptance around mental health issues in academia – a culture of overwork, lack of management know-how and the stigma of admission for those affected with mental health issues. If all or even some of these barriers exist, what can Oxford Colleges do to ensure that the risk of mental health problems to its academic and support staff is minimised?
There is considerable research on the effectiveness of different kinds of employer intervention, from monitoring to pro-active steps which may reduce mental health issues at work. As just one example, British Telecom, regarded as an industry leader in mental health at work, launched its "Work Fit - Positive Mentality" campaign eight years ago. The campaign:
- Promotes employee wellbeing and attempts to prevent distress – including tips on the company intranet and management training.
- Identifies employee distress and intervenes early through online stress risk assessment and companion training for line managers. This can include monitoring sickness absence in specific sectors to identify where there is a greater prevalence of stress and mental health issues, and identifying and reducing the risk of a workplace cause.
- Offers support and treatment for staff experiencing mental health problems – including producing "advance directives" to identify early warning signs and establish a plan of action for how someone can be supported if becoming distressed.
Innovative and successful employer programmes inevitably filter into court judgments and eventually become part of the duty of care employers must adopt. It can be cost effective - BT says that their scheme has led to a significant reduction in stress-related absence and ill-health retirement claims.
The development of increasingly sophisticated health monitoring tools plus the relative affordability of self-help programmes such as MoodGYM strongly suggests that mental health monitoring and pro-active intervention will be regarded as good practice in sectors such as higher education, where significant numbers of employees may be affected.
We shall shortly be holding an HR Forum for College HR professionals at which this and other topics in our series of articles will be addressed. In the meantime, if you would like to chat about this or any other subject, please do contact me by email at [email protected] or call me on 01865 268 663.