How to Ensure Your Business Appropriately Addresses Mental Health and the Law

Noele McClelland, Employment specialist and Partner at Thorntons provides an insight to mental health Issues in the workplace.


It is estimated that approximately 1 in 4 people in the UK experience a mental health problem each year. Anxiety and depression are now the most common mental health disorders in Britain, with 7.8% of people meeting the criteria for diagnosis. Although mental health awareness is on the rise and there are a number of charities, community groups and NHS support groups available to those with mental health problems, it appears that the help available outside the workplace does not correspond with the understanding and support available from the employers. Employers still do not consider the importance of their role in helping to tackle mental health issues within the workplace. They also do not realise the negative impact that their lack of understanding of the illness can have on their business. Examples of problems faced by employers include communication and relationship breakdowns, prolonged periods of absence, difficulty with planning and organising the workforce, frequent rotation of employees, problems retaining skilled and experienced staff and the costs associated with defending employment tribunal claims.  

Below we provide some practical advice on how to approach and deal with mental health issues in the workplace.


  1. Communication as a key to success

The fear of stigma and worry over the lack of understanding are one of the reasons that mental health conditions can deteriorate and/or make employees think that they have no other choice but to resign. People keep it hidden because they are scared about the reaction they will get from colleagues and their employer. It is vital therefore that the employees feel that they can openly discuss their mental health issues with their line managers or HR. In any event, whatever the condition may be, or the significance of the request, an employee should feel comfortable raising any suggestions about what would help with their condition within the workplace. Employers and managers need to understand not only the general condition an employee is suffering from but how it affects that individual. It is also worth remembering that the employees experiencing mental health issues may not always be capable of coping with written correspondence or telephone conversations with their employers. It should not be expected that the employees will respond to employer’s queries instantly. In addition, the frequency of any communications should be monitored carefully to ensure that employees do not suffer from detriment by being pushed to make declarations regarding their return to work in situations when they do not feel ready to comply with such commitments. Agree the nature and frequency of any contact if the employee is off work.

  1. Reasonable adjustments

Although discussing the problems and showing understating is the first step towards tackling mental health issues at work, it is important that any conversations with employees are followed by appropriate actions, and in particular that employers comply with their obligations under the Equality Act 2010. If an employee’s condition affords protection under the 2010 Act, employers are under a positive duty to make reasonable adjustments within work to help the employee. Failure to do so may amount to disability discrimination. Examples of the types of adjustments could include, extending flexible working policies, allowing employees to commute outside of rush hour, changes to an employee’s working area, or permitting an employee to take a short break when they become particularly anxious. When dealing with mental ill-health, using an occupational health practitioner with particular knowledge in this area is preferable. Employers should be open to accommodating any adjustments when a request is received, even if the change appears to be insignificant or is for a short term basis.

  1. Limiting the risk of Work-Related Stress

Employers also have a legal duty to manage the risks to employees’ health and safety, including the risks arising from stress. They should conduct risk assessments to identify the relevant risk factors and thereafter implement the appropriate measures and manage workplace activities to reduce the likelihood of stress developing. The Health and Safety Executive has devised Management Standards to assist and encourage employers to comply with their legal obligations, and to prioritise and measure their performance in managing work-related stress.

  1. Training and guidance

Employers should train managers not only on how to managing absence in relation to mental ill-health, but also how to recognise and support employees who are displaying signs or symptoms. This includes conducting productive and coherent return to work interviews and recognising potential issues arising from a person’s absences.

  1. Policies and procedures

Employers should assess their workplace policies and procedures to ensure they take account of mental ill-health and if relevant, whether their organisation would benefit from implementing a “wellbeing in the workplace” policy. They should also ensure there are adequate disciplinary policies in place to discipline employees who bully colleagues because of a colleague’s mental health, and ensuring if any such behaviour is to arise, that appropriate disciplinary action is taken. It is of course crucial that the relevant policies and procedures are also followed in practice on a daily basis, that they are easily accessible and that the employees are informed of any updates affecting their welfare regularly.


In conclusion, the key factor in tackling mental illness issues in the workplace is to ensure that employers understand the importance of their role when dealing with employees suffering from mental illnesses. Far too often the employers think that because they have not been informed directly of an employee’s illness or if the requests for adjustments were not made, they can remain passive and do not have to take any action. Although this may seem as a safe and low-risk approach, it is not always recommended from medical and/or legal point of view. Tackling mental health issues may often become a long and complex process and seeking advice at an early stage should be in the minds of every employer.

Noele McClelland
+44 1382 229111


As head of Tayside’s largest employment law team Noele is focussed on ensuring her clients receive pragmatic and commercial advice when dealing with HR and employment issues.  Her approach is based on really understanding a client at all stages of their business lifecycle and fully understanding their strategy.  Her straightforward and friendly approach and ethos of helping to simplify employment law.

 Noele advises on all areas of the employment lifecycle from recruitment through to dismissal and regularly advises clients on disciplinary and grievance matters, absence and performance management, discrimination, redundancy and reorganisations and termination of employment.  She works hand in hand with our business law team in the employment aspects of business acquisitions, disposals and outsourcing, ensuring a seamless service to clients.

Thorntons is one of the few remaining full service legal firms in Scotland.  It’s specialist teams offer innovative and commercially aware solutions for SMEs, large corporate clients, public authorities as well as private individuals. Thorntons operates from ten locations in Edinburgh, Dundee, Fife, Perth and Angus with 47 Partners and around 400 staff. The firm boasts an array of business awards and legal accreditations across its specialities. In 2016, Thorntons was awarded the title of Best Large Scottish Employer and Best Overall Scottish Employer at the Business Insider Employer Awards.

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