Figures available from the Health and Safety Executive (HSE) suggest that every year in the UK there may be in excess of half a million instances where work-related stress results in people being absent from work, with each absence amounting on average to 29 lost working days. It is the single largest cause of lost working days due to occupational ill health.

Events over the last two years have brought the issue into sharp focus, as a result of the pandemic. However, to what extent are companies responsible for the mental health and wellbeing of their employees?

The Law
The Health and Safety at Work etc Act 1974 imposes a non-delegable duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees whilst at work. A parallel duty also applies in respect of third party non-employees who may be affected by the undertaking.

Historically, investigations and enforcement action taken in response to alleged breaches of the Act have generally been initiated following the occurrence of physical risks and hazards – for example, those associated with working at height, vehicle/ pedestrian interaction and manufacturing injuries.

However, the Act is not defined in such restrictive terms and the duty to protect an employee’s health, safety and welfare is likely to also extend to mental health, and wellbeing more generally.

Employer obligations under the Act only attach whilst an employee is ‘at work.’  Whilst some instances of mental ill health may be clearly attributable to workplace events, causation may be less clear cut where there are competing factors influencing an individual’s mental health outside of the workplace.

However, causation is not a constituent part of offending under the Act, and it is sufficient for a prosecuting regulator to establish that there has been a material risk, or that more could have been done by the employer: the fact that harm does in fact occur only serves to aggravate the offending.

To date, there have been few investigations on the point and the extent to which an employer owes a duty to protect and promote the wellbeing of employees remains untested.

Before March 2020, there was increasing recognition of employee wellbeing, which is now returning to the fore as events of the last two years are left behind. The clear direction of travel is that employee mental health and wellbeing as concepts are becoming increasingly important issues for the regulators. Whilst to date the floodgates have not opened, in terms of investigations, it is likely only a matter of time.

Going forwards, the onus will be on employers to ensure that they are paying more than passing regard to these matters and firmly embed protective measures within their organisation and business culture.

What can businesses do to prepare themselves?
Whilst an immediate response may be to increase pay, this is unlikely to be a long-term solution nor will it address the root causes of employee unhappiness.

One of the factors which is widely accepted as contributing to a long life is control over one’s working arrangements, and employers need to be open to requests for flexible or hybrid working, where practicable in a workplace environment. Outside of specific roles, the days of employees being required to be physically present in a workplace are now likely gone forever, and improved technology enables individuals to balance work and life in a manner which suits them. Hybrid working arrangements are here to stay and employers should be open to such requests when received.

In addition to the practicalities of post-pandemic workspaces, employers will also need to take steps to address – and promote – wellbeing more generally. Were an employee to allege that their employer has not done enough to protect their mental health, the regulators will consider in the first instance what steps have actively been taken by the employer in discharge of its duty. For example, employers may want to consider implementing employee assistance programmes, appointing mental health first aiders and provision of external resources and support. In any event, it is important for employers to take action at an early stage and address potential issues before they get out of hand.

The future
Ultimately, employee wellbeing and mental health are important business management issues, which are only going to increase in importance and recognition. Employers should therefore work to create a culture that ensures the wellbeing of their workforce, and elevates it to equal importance with protection against physical risks to their health and safety.

There is a gradual shift across the regulatory sphere towards increased self-regulation and, in order to best position themselves in preparation for increased scrutiny, employers should consider those specific wellbeing risks to which their employees are likely to be exposed – by reason of the nature of the work, duties and responsibilities.

Where an employer identifies that additional control measures are necessary, or external support required, then steps should be taken to put these in hand, or, where it is considered that such measures are not reasonably practicable, to maintain a record as to that decision-making process.