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Lockdown 2.0 – Mental Health In The Workplace & An Employer’s Responsibilities

Reasons to choose Wilson Browne

Some people took to lockdown like a duck to water: others struggled with the impact of juggling work and home life, isolation and general lack of social interaction and support.

With lockdown 2.0 looming mental health is becoming more and more prevalent. During the last lockdown there was an increase in mental health issues and as we approach winter (which is often worse for sufferers of mental health conditions) it is important that employers are aware of what they can do to look after their employees.

Employers have a ‘duty of care’. This means they must do all they reasonably can to support their employees’ health, safety and wellbeing. This includes making sure the working environment is safe, protecting staff from discrimination and carrying out risk assessments.

A mental health issue may be considered a disability under the Equality Act if all of the following apply:

  • it has a ‘substantial adverse effect’ on the life of an employee (for example, they regularly cannot focus on a task, or it takes them longer to do)
  • it lasts at least 12 months, or is expected to
  • it affects their ability to do their normal day-to-day activities (for example, interacting with people, following instructions or keeping to set working times)

A mental health issue can be considered a disability even if there are not symptoms all the time, or the symptoms are better at some times than at others.

In the recent case of Sullivan, the Employment Appeal Tribunal agreed with a tribunal’s finding that the substantial adverse effect of an employee’s mental impairment was not likely to recur and/or last for 12 months for the purposes of satisfying the definition of ‘disability’ under the Equality Act, despite the fact that the tribunal had concluded that the employee’s mental impairment had previously resulted in an substantial adverse effect in 2013, which had recurred in 2017.

This outcome may be welcomed by employers, not least given the expected increase in mental health issues arising out of Covid-19, this decision is perhaps a surprising one for practitioners.

That being said employers should create an environment where staff feel able to talk about mental health to avoid the stigma that it carries with it. Employers can assist by keeping in contact with employees and having regular one to ones and promoting mental health awareness within the work place and treating it the same as a physical health problem.