Employers need to consider the mental health support mechanisms they have in place as Christmas approaches, says Nicola Allen.
With the festive season in full swing, it is not uncommon to feel overwhelmed by the pressures associated with Christmas, regardless of age or background. It’s a time of year which can affect people’s mental wellbeing considerably. But working in a sector which has a variety of stresses and strains – including long hours, worsening weather, tight profit margins and increasing costs of supplies, economic uncertainty and the cost-of-living crisis – it is not surprising that mental health is a particular concern in construction.
The majority working in the construction industry are men in the 21-45 age group. This adds a layer of male culture, which may in some instances prevent construction workers seeking help and support when they need it, compounding any existing stresses on their mental health and wellbeing.
Charity Mates in Mind, which was established to tackle the silence surrounding mental ill-health and embed positive culture change within sectors such as construction, reported recently that men in the UK are three times more likely to die by suicide than women. It also found that, in construction, men are three times more likely to die by suicide than the national average for men.
More conversations and education in the industry are needed, to grow and develop the support employers can give, and to encourage and help people to seek help if they need it. Here, we examine some of the actionable steps the construction sector should consider when supporting workers experiencing mental health difficulties.
The Equality Act – when will someone with a mental health condition be protected?
Disabilities in the mental health arena are numerous and can be complex. They include anxiety and depression, among other recognised forms of psychiatric conditions. In terms of the Equality Act, a person can meet the definition of ‘disabled’ even if they have not been diagnosed with a specific medical condition. Rather, it is enough that the ill-health they are experiencing has lasted (or is likely to last) for 12 months and that the condition has an adverse effect on their day-to-day activities.
This can be difficult for employers to manage, particularly if an individual has a history of mental health conditions that perhaps they have not previously made their employer aware of for whatever reason. So employers should tread carefully when handling any sickness absence for reasons related to mental health. It is also worth noting that an employee is not obliged, and should not be forced, to declare a health condition to their employer.
What claims might disabled employees bring?
There are a number of claims that a disabled employee can pursue in the employment tribunal system, including (among others) direct discrimination, indirect discrimination, a failure to make reasonable adjustments, and harassment. Direct discrimination claims are less common, as most employers will not take specific action against an employee ‘because of’ their disability. Unfortunately, the other types of claim can arise in circumstances where employers have the best of intentions and are trying to support the individual concerned, but a mistake is inadvertently made.
For example, an employee taking medication for a psychiatric condition may ask to start work slightly later than their colleagues, as a result of their medication making it difficult for them to wake in the morning. Accommodating such a request could be a reasonable adjustment, but it is easy to see that a manager may refuse and insist that all employees start at the same time (potentially indirect discrimination). And colleagues may make inappropriate comments to the individual about the adjustment if it is accommodated (potentially harassment).
What do employers need to do to mitigate the risk of these claims?
- It is essential that there is clear communication across the whole workforce that the business will provide support to individuals experiencing mental ill-health and that there is a zero-tolerance approach taken to inappropriate behaviour by colleagues towards such individuals.
- Employee Assistance Programmes are a helpful way in which support and counselling can be accessed by employees on a confidential basis.
- Employees need to be reassured that any concerns they raise will be taken seriously and, particularly in the construction industry, they need to know that they will be listened to.
- Employers should also encourage employees to use their full holiday entitlement each year, to ensure they are getting the break they need from the pressures of work.
- Finally, if an employee is absent in the long term due to mental ill-health, medical advice from an occupational health provider should always be obtained before any decisions are made as to the individual’s ongoing employment with the business, including any adjusted return to the workplace. Once a medical report has been obtained, legal advice as to next steps is also recommended.
Implementing clear policies which are sensitively communicated and updated regularly, across all levels, is essential to supporting your organisation and people with their mental health. Having this in place is also key when mitigating the potential risks associated with mental health and the discriminations which can be associated with it.
It is not enough to simply have these in place: employers must consider how frequently these are being updated along with any supplementary training which workers need to ensure clarity and understanding across the board.
Supporting a culture for change in construction
It is vital that an employer considers the support mechanisms they currently have in place throughout their organisation to ensure consistency and continued learning across all levels, so that mental wellbeing is at the heart of its organisation’s culture programme. Demonstrating the importance of a healthy work/life balance should start at the top. The workforce should see positive examples of the business’s commitment to supporting staff with their mental health.
One in five people in the UK have a disability. Most of these disabilities are non-visible, including mental health conditions, anxiety and depression. Like many businesses, supporting staff with disabilities is of vital importance to Womble Bond Dickson.
Our Disability Network supports everyone at WBD affected by disability or long-term health conditions. You can find out how they have been raising disability awareness and making positive contributions towards fostering a supportive and inclusive working environment in WBD’s Responsible Business Report 2022. The report also includes information about WBD’s Mental Health First Aiders, Wellbeing Champions, and other firmwide initiatives.
Nicola Allen is legal director at Womble Bond Dickinson. This article was written in collaboration with Michelle Essen, legal director in the construction team at Womble Bond Dickinson.
