It is time to take action, take notice and speak up about mental health.
recent case of Flemming v East England Ambulance Services NHS
demonstrates the impact of inadequately addressing an employee’s mental
health concerns. There can be a clear adverse effect on the employee’s
working relationships, but this can also lead on to the employer facing
the cost in time, money and possibly reputation of having to deal with
an employment tribunal discrimination claim. Mr Flemming raised concerns
to his employer’s HR that internal bullying had led him to suffer a
severe and crippling mental illness, which caused him to feel suicidal.
However, the response from HR simply said that “I appreciate you may
have mental health problems, but this letter is not acceptable”. Mr
Flemming had anxiety depression and his aim was to return to his job
once he was fit enough to do so. This goal was supported by his GP and
the NHS Trust’s occupational health physician. A return to work package
had been established, but over a number of years no support was offered
to help him return to his role. The relationship between Mr Flemming and
his employer irretrievably broke down and employment tribunal
litigation followed. Mr Flemming brought a number of successful claims,
including unfair dismissal and discrimination relating to his
disability. Referring to HR’s response to Mr Flemming’s letter, the
employment tribunal commented that they had “never before seen such an
Under the Equality Act 2010,
disability is defined as a physical or mental impairment which has a
substantial and long-term adverse effect on a person’s ability to carry
out normal day-to-day activities. Long-term is defined as “lasting for
at least 12 months” or “likely to last for at least 12 months” and
mental health conditions can clearly fall within this definition.
is one of the leading causes of disability globally, according to the
World Health Organisation. Employers who do not take notice of
depression and other mental health conditions amongst their workforce
can find themselves being liable in a number of different legal claims,
where there is no cap on the amount of compensation which the employment
tribunal can award.
Claims under the Equality Act 2010 linked to
disability can include discrimination, victimisation, harassment and
also a claim for failure to make reasonable adjustments where there is a
practice or procedure that disadvantages those who have a disability.
also important to note here that an employer can still be liable in a
disability discrimination claim even where the employer did not actually
know that the employee was disabled, but where the employer, if it had
made reasonable enquiries, would have known of the disability.
Prevention rather than the cure?
number of disability discrimination claims brought in the employment
tribunal rose by 37% between 2017 and 2018 and has remained high since
So what can be done to reduce the risk of an employment tribunal claim linked to mental health issues at work?
clear that there is benefit for both employers and employees where the
workplace has a culture of openness and awareness about mental health.
This could involve the employer being supportive and making reasonable
adjustments to alleviate the difficulties which employees with mental
health issues can face at work. It could also include having mental
health first aiders in your organisation. Organisations such as Mental
Health First Aid England train people to develop the skills necessary to
look after the well-being of others. A trusted, calm and non-judgmental
listener can be the first step in treatment.
It’s also important
to consider not just how you can prevent an employment tribunal claim,
but also how as an organisation you can work with your employees to
address mental health concerns in the workplace and help ensure that you
support positive mental health at work. It’s clear that ignoring mental
health in the workplace or just operating as ‘business as usual’ is no
longer an option. It’s time for employers to take action and to get
ahead on mental health.