Last month, a number of organisations took part in various suicide prevention campaigns in an effort to raise awareness of this complex and sensitive issue. It was an important reminder of how far we have come as a society in terms of the progress that has been made in understanding and discussing mental health and in appreciating the role that employers can play in mental wellbeing. As demonstrated by a survey conducted by Healthy Workplace Ireland, and published in March of this year, it is known that:

• one in five Irish firms have experienced mental health related issues in the past year;
• 76% of employers agree that they have a responsibility in supporting employee mental health.
  

But with increased awareness and publicity comes a corresponding increase in expectations from affected parties, from employees to regulators. When things go wrong in this space, there is the potential for grave and far-reaching consequences. As such, it is in everyone’s best interest that employers look to be prudent in staying on top of this area.

So, what are an employer’s duties when it comes to mental health?

From a legal point of view, businesses have a range of statutory and common law duties, including those under health and safety legislation, equality legislation and their common law duty of care.

At a base level, the Safety, Health and Welfare at Work Act 2005 (the 2005 Act) imposes an obligation on employers to ensure the health, safety and welfare of employees whilst at work, and, amongst other things, to provide a safe place of work. The 2005 Act, and in particular, Section 8, sets out the general duties of employers so far as is ''reasonably practicable'' (Reasonably practicable is defined in the Act as an employer exercising ''all due care by putting in place the necessary protective and preventative measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work...''), and these duties extend to both physical and psychological risks, including the reasonable prevention of harassment, bullying and stress related injuries in the workplace.  

Simply put, an employer has an obligation to provide a safe place of work, to assess the working environment for systems and practices which may lead to health and safety hazards including mental health hazards and, where necessary, put preventative measures in place.

Does that mean that we tackle mental health as a health and safety issue?

Yes and no. An employer’s health and safety obligations provide some really good “building blocks” and an opportunity to get a good foundation in place from the outset.

For example, we know that an employer’s obligation to protect its employees from “harm” includes mental harm and this is something that employers can, and should, be building this into their risk assessments and safety statements. The majority of employers have taken great time and care to identify psychological hazards as part of complying with the statutory duty to carry out a risk assessment (for example, identifying factors associated with workplace stress, such as bullying, remote or lone working, excessive workload). These same employers will likely have dedicated appropriate resources to eliminate and mitigate these risks and hazards by way of appropriate supports and controls, and initiatives such as EAP programmes, or an occupational health or emergency response plan.

Many prudent and proactive employers are going one step further, by taking a more holistic approach and making efforts to ensure that these initiatives are married together with their broader workplace policies/procedures/training. The findings, the controls and the response plans identified during the risk assessment stage are used and to inform and support not just the safety statement, but their targeted workplace policies and training (including HR processes, such as performance management, grievances, mental health/health and wellbeing, absence/illness policies etc).

You mentioned grave and far-reaching consequences – how serious are we talking?

The ongoing discussion around mental health generally has been instrumental in highlighting the consequences of mental health problems in the workplace, ranging from the trivial to the tragic. At an organisational level, issues such as absence, performance, poor culture, grievance processes, negative publicity, attrition and productivity make this an issue not just for the health and safety professionals, but also a HR, IR and business issue.

Legally speaking, the consequences are just as broad and range from civil (such as a claim for personal injury a claim for disability discrimination or a claim for unfair/constructive dismissal) to criminal. If mental health goes seriously wrong, that’s a matter for the health and safety regulator and employers (including senior leaders) can face significant penalties under Irish health and safety legislation. For a company, this range from improvement/prohibition notices to substantial fines, and for an individual, can include fines and/or imprisonment. In addition, the impact of a successful criminal prosecution can have broader ramifications, with knock on effects on matters such as insurance, disqualification and/or ineligibility for certain positions, tenders and negative publicity..

Are we seeing much activity in the prosecution space?

In Ireland, we are yet to see a lot of case law emerge on this to date. However, if we look further afield, we can get a sense of how this area of law is developing. For example, in Australia (A useful comparator on the basis that they operate under similar laws, but under a newer and more modern regime which can give good indications of things to come here in Ireland), we can see in the past year alone, there have been two incidences of criminal prosecution for failures in connection with employee mental health.

1. Earlier this year, the Coroners Court of Victoria pleaded guilty to failing to protect staff from bullying, overwork and vicarious trauma after an in-house lawyer took her own life. In this case, the Coroners Court was put on notice of potential workplace issues, after a 2015 staff survey identified inappropriate and bullying behaviour was occurring in the workplace (judgment pending with possible penalties in the region of $380,000).
2. In another matter, the Department of Defence has been charged with breaching commonwealth work health and safety laws after a Royal Australian Air Force (RAAF) worker took his own life while on duty. The Department is facing three charges, alleging a failure in its primary duty of care (similar to our section 8 duties) under Australian work health and safety legislation.

At first glance, you might think that perhaps these are industry or work-type specific. But just last year, we saw the tragic case where a young accountant took her own life on company premises of a professional services firm in Sydney. That company launched its own independent investigation (which has attracted significant media attention) following the emergence of allegations of bullying and poor culture, with the final report making 27 recommendations for change, including around working hours and culture.

While these cases may be overseas, they are no less relevant to our understanding of the current legal landscape.

So, what should my business be doing?

As the way we work and the nature of our work changes, mental health is likely to become a greater focus for health and safety regulation. What’s happening in this space, both here in Ireland and overseas is evidence of that. In the past year alone, the Irish regulator has produced various guidance documents on this topic, which suggests that mental health and psychosocial influences (i.e., the combined influence that psychological factors and the surrounding social environment have on a person's physical and mental wellness and their ability to function) are becoming greater areas of concern for them.

While the legal obligations around mental health may be varied, an employer’s health and safety obligations provide strong guidance and serve as a useful and important starting point. By making mental health a core business consideration, employers can get a good foundation in place from the get-go, by tying together their health and safety data, their broader business policies/procedures and training.

Legal Island Training Resources for Your Staff

Mental Health & Wellbeing | eLearning Course
Are you responsible for overseeing and managing the wellbeing of all employees in your organisation?
Our mental health and wellbeing course is designed to provide a comprehensive overview of the area of mental health and wellbeing, ensuring all staff are aware of the importance of mental health and wellbeing in the workplace. This includes the benefits to staff and the organisation of maintaining good mental health.

Click here to access a free demo of this course, or access it as part of our employee wellbeing toolkit along with several other key mental health and well-being topic areas.