Alan McCormack | Senior Associate

Mental Health at Work

Perhaps, now more than ever, mental wellbeing is of a paramount concern in our daily lives, as we ease out of another lockdown.  The culture in regard to mental health awareness has changed dramatically over the last decade with awareness campaigns such as ‘Heads Together’, Thrive Law’s campaign to introduce annual wellbeing risk assessments and the wide availability of counselling for both private and public sector employees.  While, in the past mental health was something not widely recognised, a culture of disclosure and openness in mental health diagnosis and treatment has arose in recent years.  

Mental health awareness is relevant in the work place as:

  • The Health and Safety Executive reports that 15.4 million working days were lost in 2018 as a result of depression, anxiety and stress.
  • Stress is costing British business £1000 per employee per annum in sick pay and associated costs.
  • A Business in the Community publication ‘Mental Health at Work’ has found that 15% of employees face dismissal, demotion or disciplinary action after disclosing a mental health issue at work.

The wellbeing of employees as they return to the office from many months in isolation will be a vital factor in how businesses recover from the dramatic change in working practices that occurred with the onslaught of the pandemic last year. The employee is likely to suffer from anxiety upon their return to work and their employer should manage the employee appropriately.


Legally, employment lawyers will recognise that the Equality Act 2010 is an employee’s recourse, after the fact, should he or she be treated unfavourably by a colleague or their employer.  The sticking point, however, is that an employee must meet the definition of disability at section 6 of the aforementioned Act.    The employee will also require evidence of the disability itself through medical records, evidence of the effects of the disability, evidence of disclosure of the disability to their employer, or evidence of events that would have put their employer on notice that he or she suffered from a disability.   The nature of the mental illness may make it difficult for an employee to meet the definition and if the employee manages to do so, the lengthy tribunal process is likely to make the employee’s mental health condition more acute.

A more proactive approach, that we should be mindful of as we return to the office, is good employment relations and the fostering of a work place culture of openness in relation to mental health.   In addition to this an employer should consider any reasonable adjustments that could be provided to the employee to assist them in their role.   While an employer may have previously been wedded to capability procedure, good practice would be to encourage the relevant employee, provide him or her with consistency, clear expectations, regular communication and deadlines.  In addition, a ‘wellbeing risk assessment’ could be made in which the employee can disclose any particular barrier to performance they feel may affect them when they return to the office.  A mental health officer could be appointed at work and employees should make use of the counselling services available through their employer.

Whether you are an employee or employer, and disability is an issue in the work place, Jackson Boyd can provide bespoke legal advice.

Please Call us on 0141 413 9178 or email us at

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Alan McCormack

Alan McCormack

Employment Law Team

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