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- Employers in the UK must comply with the Equality Act 2010 and Health and Safety at Work etc Act of 1974, and have a legal “employer duty of care” for their employees.
- This duty of care requires an employer to protect mental/psychological as well physical health, safety, and welfare of its employees while at work.
- To fulfil your duty of care as an employer you should make a proactive effort to monitor employees’ wellbeing and provide individual support.
- Employers that adopt a holistic approach to their employees’ wellbeing boost staff retention and productivity.
The law has always been notoriously slow to catch up with cultural change. In the UK, Marital rape has only been illegal since 1992; gay marriage was only legalised in 2014. But when it comes to legal mental health rights at work, tardy as it may be, change is coming.
With mental health issues becoming increasingly prevalent in the workplace (now accounting for one in three Fit Notes issued by general practitioners) there's a growing onus on employers to provide a safe and supportive working environment.
Let’s find out more about what the legal responsibility for mental health requires employers to do, what ‘employer duty of care’ really means, and how mental health solutions like Spill can help you comply with mental health employment law.
A look at mental health employment law in the UK
When it comes to mental health and employment law, there’s not so much a mental health at work act but rather there are two principal pieces of legislation to comply with.
Employers’ responsibilities are dictated by the 2010 Equality Act and the Health and Safety at Work etc Act of 1974 . Together these stipulate there are three key responsibilities pertaining to mental health in the workplace that UK employers have when staff are being hired and once they are in employment.
1. Employers cannot discriminate against any employee (or candidate) with a mental illness that classifies as a disability
Many of the laws in the UK relating to mental health rights at work specifically refer to mental health conditions that, as outlined in the Equality Act 2010, classify as a disability:
A mental health condition is considered a disability if it has a substantial and long-term effect on a person's normal day-to-day activity.
Here, ‘substantial’ means going beyond the normal differences in ability that may exist among people. “Long-term” describes a condition has lasted, or is likely to last, for at least 12 months. “Normal day-to-day activity” refers to something a person does regularly as part of their routine (e.g. using a computer, working set hours, travelling to work, or interacting with others).
Various mental health conditions, including depression, bipolar disorder and schizophrenia, can lead to a disability. It should be noted that the presence of one of these conditions does not automatically mean that person has a disability. To be classed as having a disability, they will also need to meet the broader conditions set out in the definition above. The UK government’s guidance document to the Equality Act 2010 is a good place to get more information on what does and doesn’t constitute a disability .
2. Employers must protect employees against undue stress
Research suggests that employment is the most common cause of stress, with 79% of the population affected. Stress itself is not considered a mental health condition. However, severe and persistent stress can have serious health consequences, causing everything from anxiety and depression to back pain to heart disease.
Mental health employment law in the UK says that employers have a legal responsibility to protect their staff from unreasonable stress and mitigate its effects when employees are affected. Two other pieces of legislation are important here.
The Working Time Regulations Act 1998.
This sets a limit on working hours and rights to breaks and holiday. On average, employees should not have to work more than 48 hours in a seven-day period. They can choose, however, to work more hours than this if they wish. But employers must abide by other statutory minimums such as employees’ right to 28 days of holiday a year (including bank holidays) and the right to at least one 20-minute break for every working day of six hours or more.
The Management of Health and Safety of Work Regulations 1999 (MHSWR).
Looking more broadly at stress in the workplace, this legislation requires all employers to make a “suitable and sufficient assessment'” of the work-related risks to the health and safety of their employees. It says they appoint competent persons to do the assessment, providing training where needed, and implement appropriate measures called for the assessment. Employers with five or more employees must record any significant findings.
3. Employers have a legal "duty of care" to their employees
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An employer’s duty of care is to protect the physical and emotional health, safety, and welfare of your team and others while they are at work.
For UK-based companies, the “employer duty of care” is a legal responsibility that says an employer must do whatever it can (within reason) to protect staff from any risks arising from work activities. Crucially, this doesn’t refer only to physical risks.
An employer’s responsibility to protect staff from emotional and psychological harm is equally important. Just as a company needs to safeguard workers from potentially dangerous equipment and activities, it must also protect them adequately from unreasonable psychological risks such as stress, anxiety and burnout. While much of the language used in the Health and Safety at Work Act evokes the dangers posed by building sites and factory floors, the risks associated with desk and office jobs must not be underestimated.
How to fulfil your employers duty of care for mental health
The responsibilities that are incorporated under your duty of care to employees include all health and safety considerations as well as legal and financial obligations. This can include things like employers liability insurance, for instance.
For the purpose of this next section, we'll mainly focus on steps you can take to ensure your employees psychological safety to meet these obligations.
👉 Your employees must have a safe and healthy working environment
Alongside making changes to the physical work space (such as ensuring good ventilation and removing any trip hazards) from a psychological perspective this could include:
- Making sure you have an anti-bulling policy.
- Creating an open culture where employees feel comfortable discussing their mental health.
- Creating an environment where staff are encouraged to raise any concerns, and a system where they can do this effectively.
- Providing access to mental health support and resources both inside and outside of work.
- Include mental health days in your sick leave policy
Give employees access to next day therapy sessions
Spill provides fully confidential therapy sessions with qualified counsellors to help your team through any challenge, personal or professional.
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👉 You should provide adequate training so your team can do their jobs safely
Training is crucial part of safeguarding employees from any risks they are exposed to in the workplace across a range of areas. This should include:
- Mental Health First Aid training to help your team manage health and wellbeing proactively, minimise the impact of mental ill health on your people, and promote and maintain a safe and healthy workplace.
Train your team to support struggling employees
Spill’s mental health training programmes add an extra layer of safeguarding for your team, empowering employees to spot mental health presentations and take appropriate action.
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👉 Your teams should have (free) access to anything they need to work safely
What is 'adequate and appropriate' in terms of the equipment, facilities or personnel required to help employees work safely depends on the nature of the job. This could include:
- Reasonable adjustments for anyone with a mental health condition, e.g. flexible hours for someone who struggles with anxiety during commuting hours
- Flexible working, mental health days, and 1-2-1s to give everyone the autonomy to look after their own mental health
👉 Your employees must have suitable supervision to protect them from harm
Supervisors are responsible for ensuring that workers understand any risks associated with their work environment, and that the measures in place to control them are being used properly. This could include:
- Monitoring working hours to make sure no one is continually overworked
- Setting up a proper plan for taking holiday and encouraging everyone to take the full amount of time off
- Implementing a right to disconnect policy
- Running regular employee wellbeing surveys to check in on how people are feeling
Catch anyone who’s at risk of poor mental health
Spill regularly checks in to ask your team how they’re feeling, and a qualified counsellor will reach out to support anyone who’s struggling.
Learn more
👉 Watch out for work-related health issues and take steps to prevent them from getting worse
As an employer, you must make sure workers’ health is not impacted by their work. As soon as you notice that an employee is having difficulties, talk to them – early action can prevent them becoming more unwell.
- Have health and safety as an agenda item for scheduled work meetings, appraisals or informal chats about progress to find out more about any problems an employee may be having.
- Some employees find it useful to draw up an 'advance statement' which explains how they want to be treated if they do become unwell.
- Implementing standing or walking meetings to encourage regular breaks from sitting down.
- Direct workers to appropriate help, for example from their GP or an employee assistance programme (EAP).
- Allow workers time off work for counselling or medical appointments.
The benefits of fulfilling your duty of care to employees
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Looking after your employees benefits everyone. When employees feel safe and valued, their engagement and feelings of loyalty towards their employer tend to rise, resulting in increased productivity and retention rates.
Attaching real importance to fulfilling your employers duty of care also enhances corporate reputation, makes it easier to hire top candidates and of course, reduces the risk of potentially costly legal disputes.
A recent report found that more than half (57%) of European companies believe that there is a strong link between the quality of their duty of care provision and their corporate profitability and productivity. The survey found that employers who adopted a more holistic approach and assumed a moral responsibility to duty of care, as well as a strictly legal one, were almost a third more likely to report greater profitability and reduced employee absence. This is something we hear often at Spill when speaking to new customers.
“When you provide impactful benefits and treat staff in a way that goes above and beyond what's legally required, they'll feel better about working for your company, and they'll give a bit more of themselves to their work,” - Anna Turner-Major, VP of Operations at Spill.
Do employers have a moral obligation to support employee mental health?
The government’s 2017 ‘Thriving at Work’ report sets out “core standards” that it recommended all employers should adopt. This gave rise to the Mental Health at Work Commitment framework in collaboration with the charity Mind, to which more than 3,000 employers have already signed up. It's clear that many employers feel they have a moral obligation to support their employees' mental health, as well as a basic legal obligation.
By the nature of their businesses or because they're start-ups with smaller teams, some companies expect a lot; staff are under a lot of stress and working at a very fast pace. And with NHS waiting times for counselling over 3 months long in 2022, coupled with the cost-of-living crisis putting private therapy sessions out of the price range of most people, the motive to provide people with emotional support paid for by the business is clear.
“We often hear from companies who are looking to support employees who see traumatic things as part of their work,” says Anna at Spill. “People who are working on moderation or safety on platforms might see distressing images that need to be viewed, as part of their job. Another example is customer service, where often people will ring up and be really angry or in distress, and someone at the other end of the phone has to deal with that".
“I think there's a recognition that some jobs are not very well paid, but have a huge impact on someone's mental health. And so, companies do feel a moral obligation to then provide them with mental health support, because they feel responsible for putting them into those situations.” - Anna, Spill.
Taking a proactive approach to duty of care
Above all it’s important for an employer to take a proactive approach to its duty of care, as illustrated by recent legal disputes.
The case of Intel v Law in 2007 involved an employee who experienced a breakdown caused by chronic depression as a result of her excessive workload. While the company said that the employee failed to access the external counselling services in place, the Court of Appeal disagreed. It said the employer’s short-term counselling wouldn’t have reduced the risk of a breakdown alone because there was no plan to tackle the root cause – the excessive workload.
The Court made it clear here that despite having support systems in place for staff, management still failed in its responsibility to combat known work-related stress, and therefore failed to meet its duty of care for employees. In short: companies need to make a proactive effort to find out about wellbeing and provide individual support to those who need it.
“A ‘holistic’ approach should include both proactive and reactive measures. Some employers focus only on reactive care, to help staff once they’re in a crisis. Whereas proactive care might be providing a really nice holiday policy. I think holistic is making sure that all of these aspects are covered" - Anna, Spill.
"A holistic approach also means a different response is required for different circumstances. Someone going through bereavement, and someone who's being made redundant, might have very different kinds of needs. And I think being able to offer something to each that's quite different is important”.
Industry leaders attest to the advantages of taking a proactive approach to duty of care. “Employees who believe that management is concerned about them as a whole person - not just an employee - are more productive, more satisfied, more fulfilled. Satisfied employees mean satisfied customers, which leads to profitability,” according to Anne M. Mulcahy, ex-CEO of Xerox Corporation.
What happens if you breach your duty of care to employees?
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Failure to support your teams mental health and wellbeing in line with your statutory duty of care could result in lawsuits, financial penalties and reputational damage.
To succeed in an Employers’ Liability (EL) claim, an employee must prove that:
- They have been diagnosed with a stress-related illness
- This illness was caused by their work
- The risk of this illness developing was foreseeable to their employer
- The employer breached its duty of care by failing to take reasonable precautions to manage the risk.
Employers’ Liability (EL) claims can be very costly, both in terms of the emotional impact on the employee and the financial cost to employers.
In February 2024, the law firm Brachers recovered £300,000 in compensation for a former London parks manager who suffered stress and severe depression due to his employer’s failure to offer the appropriate duty of care.
The man alleged that the stress he suffered and the subsequent depression leading to a nervous breakdown, were caused by the negligence of his employers, who subjected him to an unrealistic workload and removed the resources and assistance he needed to do his job effectively. He was working excessive hours, including on call time at weekends and evenings, and was unable to take his full holiday allocation.
After receiving a letter from the victim's GP warning of the impact work were having on his health, and a referral from occupational health with an action plan to improve the situation, unfortunately this was never implemented by his employer. Tom’s condition deteriorated, leading to his breakdown six months later and his permanent ill-health retirement, over 10 years early.
Frequently asked questions
Q: Is it true that mental health must also be considered in workers’ first aid needs assessments?
Yes. In 2024, amendments to Health and Safety (First-Aid) Regulations stressed an employer’s responsibility to take account of employees’ mental health in their first-aid needs assessment.
The document states that employers should "have people trained to identify and understand mental ill health symptoms who are able to support someone who is experiencing a mental health issue". Importantly, this training should not only teach first-aiders how to "provide initial support and reassurance to a worker experiencing an acute mental health episode" but it should also ensure they "know how to access professional help if necessary" using support tools like Spill.
Q: Disclosing a mental illness in the workplace - is this a legal requirement?
No, an employee or job candidate is not legally obliged to tell an employer about any medical condition, mental or otherwise, they may have. An employer is entitled, however, to ask relevant questions about their health to find out if they have a disability or if there are any adjustments the candidate might need at work or during the application process. Additionally, an employer can ask questions to determine whether the candidate will be able to carry out the job role. A degree of honesty is required from the employee or candidate.
If a candidate has a past history of mental illness but is not currently affected, they are not obliged to tell their prospective employer. If, however, the mental illness is likely to recur and the candidate lies about the condition at the interview stage and states they do not have any medical condition(s) which would affect their work, only for the illness to impact their performance upon beginning work, then the employer might be in a position to argue that there has been a breach of the duty of mutual trust and confidence.
Experts at LawCare say that if this leads to a dismissal (implemented on a legitimate basis) then the employer could defend its position by arguing the reason for the dismissal was not connected to any disability - since this was not disclosed to them.
Q: What rights do UK employees have relating to mental health?
UK employees have the right to confidentiality regarding their mental health; employers cannot share mental health information without a worker’s consent.
Workers are also entitled to take time off for mental health issues as they would be for other illnesses.
They are also entitled to expect their employer to make reasonable adjustments to cater for a mental health condition they might have. Such adjustments might include reasonable changes to working hours and patterns, working roles and responsibilities, communication styles and the physical work environment.
Q: Is it possible for an employee breach their duty of care at work?
Yes. This can happen in various ways. One is by flouting safety procedures. This might be ignoring workplace hazards, failing to use provided safety equipment or failing to report an accident or not drawing attention to potential dangers or risks.
Acting carelessly in a way that could cause harm or injury to themselves or others, might also put employees in breach of their duty of care under the Health and Safety at Work etc. Act 1974. In addition, employees have responsibilities under the MHSWR to take reasonable care of themselves and others, to not misuse equipment and to co-operate with management.
If an employee's actions fall below the expected standard of care and cause harm or injury, they could face legal consequences. These might include:
- Disciplinary action, ranging from a warning right up to termination of employment.
- Legal action: depending on the severity of the breach and the consequences, the employee could be sued for negligence or even face criminal charges.
- Compensation claims: if an employee's negligence causes injury to another person, the injured party may be able to make a compensation claim against the employee or their employer.
Employers are vicariously liable for the negligence of their employees (ie. they have some responsibility for the actions of the people they employ) but are entitled to claim a contribution or indemnity from their negligent employee in appropriate circumstances.
