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  • Writer's pictureJames Fairview

Is Workplace Mental Health Regulation Failing?

Updated: May 13, 2020

Should mental health be treated like physical health? In the workplace, is that even possible or is regulation actually preventing it?

For mental health to be treated like physical health, laws and law enforcement must be aligned. But the UK’s enforcer of workplace health, the Health and Safety Executive (HSE), turns a blind eye to mental health and legal rulings actually argue against doing so.

If physical harm arises in the workplace, employers face sanctions. With mental harm, they do not.

The HSE and the Crown Office and Procurator Fiscal Service issue £20m to £50m in fines each year as a result of employers breaching health and safety laws.

Total fines for health and safety offences prosecuted by HSE (UK) and COPFS (Scotland)

A freedom of information request to the HSE revealed that in respect of fines for mental health breaches, there is ‘no data available’. A euphemism for zero fines, perhaps? The HSE stated the reason for this lack of data is that, unlike physical harm, mental harm is not reportable.

Physical accidents must be reported to the HSE when employees are unable to perform their usual duties for more than seven days, or where specified injuries and illnesses occur. With mental harm, the employer can be the sole cause of mental harm, the extent of mental harm can be significant and a doctor’s note can confirm the illness, its cause and its seriousness – the employee can be absent for months or even commit suicide – yet the HSE does not require the employer to report the incident. There is no similarity between the reporting of physical and mental harm.

The HSE does not enforce workplace mental health breaches as the nature of mental health, along with aspects of the law, make doing so problematic.

Firstly, the HSE’s position of non-enforcement is almost certainly based on the belief it cannot prosecute cases of mental health negligence against employers where negligence can be proven to a criminal standard – beyond reasonable doubt. Establishing the exact cause of poor mental health can be difficult.

Secondly, employers may present an effective defence. In 2002, a seminal legal case was brought. The case went to the Court of Appeal where, in ruling on ‘Sutherland v Hatton’, LJ Hale issued guidance known at the ‘Hatton Propositions’; 16 guiding principles for cases related to mental health.

One of these rulings stated no occupation is intrinsically more dangerous to mental health and the test of foreseeability is the same whatever the occupation. In other words, all jobs carry the same risk of mental harm and employers need not foresee mental harm unless a ‘trigger’ causes them to do so. This ruling is contrary to the principles of physical health risk management.

Another of the ‘Hatton Propositions’ states employers have no obligation to enquire about the mental health of employees. The Equality Act 2010 requires employers to ask about disabilities, including mental disabilities. An employer may also be alerted to an employee’s poor mental health by another ‘trigger’, such as a medical note. Only under these two circumstances are employers required to enquire about the mental health of employees. Employers have no general duty to enquire about it. This is contrary to the legal requirement to undertake mental health risk assessments. How can employers effectively assess risks without asking employees how mental health hazards affect them? With physical health, ignorance is no defence for employers. With mental health, it is.

The ‘Hatton Propositions’ provide employers with guidance, as well as a defence. As it is difficult to prove mental health negligence, and given employers have a defence, it is problematic for the HSE to bring claims against employers. To a great extent, when it comes to mental health, employers can act with impunity.

The HSE could hold employers to account for failing to have a mental health policy or failing to undertake mental health risk assessments. But do they? With only half of employers having a mental health policy, enforcement seems lax.

Workplace mental health regulation differs greatly from that of physical health. Until workplace law and its enforcement is revised, it will continue to be a point of failure in the struggle to improve mental health.

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