HR Insights, 17th Sept, Refreshing Law - Mental Health in the Workplace

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1. Mental Health in the Workplace Anna Denton-Jones September 17th 2019 2. navigating employment law What is mental health? ã Mental health is defined as a state of…
  • 1. Mental Health in the Workplace Anna Denton-Jones September 17th 2019
  • 2. navigating employment law What is mental health? • Mental health is defined as a state of well- being in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community World Health Organisation
  • 3. navigating employment law • …”the emotional and spiritual resilience which allows us to enjoy life and survive pain, disappointment and sadness. It is a positive sense of well-being and an underlying belief in our own and others’ dignity and worth”. Health Education Authority
  • 4. navigating employment law Chris O’Sullivan, Mental Health Foundation “Mental health is something we all have. Workplaces that challenge us, support and develop our sense of purpose, and support us when things are hard can play a massive role in protecting and building our mental health. A mentally healthy workplace can be built on the back of good basic line management relationships, clear HR policy and engagement of staff in decision making. Prevention is key - we need to enable everyone to flourish, those in distress to access help quickly, and those who have recovered from mental health problems to stay well and enjoy successful careers”
  • 5. navigating employment law Mental health continuum No illness. Positive mental health No diagnosis but poor mental health Diagnosed serious illness and poor mental health Serious diagnosis but copes well and has positive mental health
  • 6. navigating employment law Definition of a “disability”? “a physical or mental impairment which has a substantial or long- term adverse effect on the person’s ability to carry out normal day to day activities”
  • 8. navigating employment law Perception of disability: direct discrimination • Chief Constable of Norfolk v Coffey • Fortt v Chief Constable of South Wales Police • Where someone is treated less favourably because of inaccurate conclusions drawn about their ability to do the job, based on stereotypical assumptions about the perceived disability, this will amount to direct discrimination
  • 9. navigating employment law Duty to make reasonable adjustments Where a provision, criteria or practice or a physical feature of the premises places a disabled person at a substantial disadvantage in comparison with a non- disabled person, the employer is required to make reasonable adjustments to remove that substantial disadvantage. The employer needs to know or be reasonably expected to know about the disability before this duty kicks in.
  • 10. navigating employment law Discrimination arising from a disability; section 15 Equality Act 2010 A person discriminates against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of the disability and the treatment cannot be shown to be a proportionate means of achieving a legitimate aim.
  • 11. navigating employment law Undiagnosed issues • Illustrate to OH the issues you are experiencing in the workplace and seek their advice: – Pattern of absence or attendance issues – Lack of clarity about whether there is an underlying condition – Lack of clarity therefore about what support needed
  • 12. navigating employment law Am I expected to accept more absence? • If somebody has a disability that is likely to involve a ‘greater than normal’ absence level, you need to adjust your triggers for when you would normally take action under your policy ie:- it takes longer to go through the process. • The employee is not immune from process.
  • 13. navigating employment law Bray v London Borough of Camden "The logical consequences of …argument that an employer should exclude from consideration the entire part of an employee's sickness absence related to disability would be that an employee could be absent …without the employer being in a position to take any action in relation to that absence. ….as a matter of good sense,….if any such absences were to fall outside the sickness policy it would generate enormous ill-feeling and be a potential for unauthorised absenteeism."
  • 14. navigating employment law Knowledge of a disability Employers need to take care as it is not just what the employee tells them directly – they are expected to know what their Occupational Health Advisers know and to interpret the facts before them.
  • 15. navigating employment law What if the employee is hiding their disability? • A Limited v Z
  • 16. navigating employment law Am I expected to put up with unacceptable behaviours? • You are not expected to put up with unacceptable behaviours
  • 17. navigating employment law Moving feast • A known disabled employee’s needs change during their employment – Diarise annual reviews – Revise adjustments made
  • 18. navigating employment law Burden of proof in disability cases • Employee argues set of facts which they say suggests discrimination took place • You have to show that disability discrimination was not the reason for any treatment they received or justify it • Paper-trail is how you do this
  • 19. navigating employment law When a condition is disclosed • Avoid making assumptions • Confidentiality • Develop a Wellness Recovery Action Plan  Encourage dialogue  Make adjustments • Agree how contact will work when absence occurs • Training for managers in how to conduct RTW interview?
  • 20. navigating employment law Get medical advice • GP, Specialist, Occupational Health • Employee consent required under the Access to Medical Reports Act 1988 where the medic is responsible for the clinical care of the employee • The quality of the reports you get back will reflect the quality of information you provide
  • 21. navigating employment law Discussion • What is your organisation doing to support the workforce’s health and wellbeing that it wasn’t a year ago?
  • 23. navigating employment law • HR practitioners have the power to help their organisation focus on abilities, not disabilities, and present disability as a natural part of diversity. Jake Young, Research Associate CIPD
  • 24. navigating employment law Ten steps we can take: 1. Holiday
  • 25. navigating employment law Ten steps we can take: 2. Flexible Working
  • 26. navigating employment law Ten steps we can take: 3. Ask sensible questions • What can I do to help? • What do you need? • What support can HR give you?
  • 27. navigating employment law
  • 28. navigating employment law Ten steps we can take: 4 Routine practice – all processes • Ask employees if they need any adjustments – NOT JUST RECRUITMENT
  • 29. navigating employment law Ten steps we can take: 5 – Access to Work Funding for adjustments • Don’t forget this source of support and advice
  • 30. navigating employment law Ten steps we can take: 6 – Don’t make assumptions • Ask the person about how their disability affects them (nor not) and listen to what they say
  • 31. navigating employment law Ten steps we can take: 7 – Confidentiality/Data Protection – give it priority • Limit who knows what eg:- senior managers don’t need to know details, payroll to process sick pay doesn’t need to see the reason for sickness on fit note • Do not tell colleagues/discuss it in front of colleagues (you will have a harassment complaint)
  • 32. navigating employment law Ten steps we can take: 8 – accept that we employ disabled people • Instead of focusing on ‘how do we get rid of this person’ – ‘how do we keep on working with this person?’ • Change our mindset
  • 33. navigating employment law Ten steps we can take: 9 – Training for line managers • Research conducted by Opinium in partnership with the University of Warwick, found that managers wanted more support from their organisations when it came to helping staff with mental health problems.
  • 34. navigating employment law Ten steps we can take: 10 – Allow people to have mental health issues • Create a workplace culture where we all have good and bad days and all have ups and downs and sometimes all need time out and rest and all need time off to recover
  • 35. navigating employment law Sources of further information • • • • • • • •
  • 36. navigating employment law Sources of further information • • • • • • • • •
  • 37. Contact us: Phone 02920 533393 or 077977 545480
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