6.5 From an overview of legislation in this area, it is possible to conclude that in relation to people with disabilities in employment, the issue of mental health is not treated any differently from any other disability. However, there has been relatively little case law on it to date. What is clear from the Employment Equality Acts, 1998-2004, is that employers must not discriminate against those with mental health issues in relation to any aspect of their employment. However, while employers are not obliged to employ or retain an individual who is not capable of under- taking the employment, they do have a legal obligation to provide reasonable accommodationfor those with disabilities, subject to it not imposing a disproportionate burdenon them. Employers also have a legal obligation to ensure equality in practice between employees in the workplace. The equality legislation contains provisions allowing for ‘positive action’, that is, measures to remove existing inequalities that affect opportunities in access to employment, training, promotion and working conditions. These points are presented more fully in the paragraphs that follow.
6.6 Employers are legally obligated to protect the health and safety of their staff.The Safety, Health and Welfare at Work Acts, 1989 and 2005require them to put in place systems of work which protect employees from hazards which could lead to mental or physical ill-health. Employers have to draw up a written risk assessment of all known hazards, including psychosocial hazards, which might lead to stress. Eardly (2002) outlines the potential hazards linked to work related stress, including occupational culture, change in the workplace, role and work schedules. However in broad terms, occupational health and safety provisions do not extend beyond risk prevention (Wynne and McAnaney, 2004).
6.7 Under the EU Framework Health and Safety Directive and the EU Framework Agreement on Work Related Stress, employers must develop a coherent overall prevention policy. The Safety Health and Welfare at Work Act 2005 provides that“every employer shall ensure as is reasonably practicable, the safety, health and welfare at work of his or her
employees”(Government of Ireland, 2005). There are also obligations on employers and employees in terms of a duty of care to protect others from avoidable harm.
6.8 According to the Health and Safety Authority (HSA), while risk
assessments are compulsory and do include health, no statistics are kept on ill-health or stress. As yet the HSA has not taken any court case on a mental health issue. Only one psychologist offers guidance on best practice on developing safe organisational cultures.
6.9 There is also a legal obligation on employers to make reasonable accommodation for their employees with mental ill-health under disability and equality legislation. While the Disability Act 2005supports the
provision of specific services to people with disabilities, the Equal Status Acts 2000 to 2004and Employment Equality Acts 1998and 2004 prohibit discrimination on nine grounds, one of which is disability (Government of Ireland, 1998; 2000; 2004; 2004a). This is broadly defined as including people with all physical, sensory and intellectual disabilities and mental health issues. Under this legislation, employers have to make reasonable accommodation for employees with mental ill-health.
6.10 The nature of ‘reasonable accommodation’ is only emerging slowly from cases brought to Equality and Employment Tribunals. The Workway initiative (see Chapter 7) developed a Guide to Disability in the Workplace in 2004which outlines the core categories of reasonable accommodation as being: (i) changes to a job application process enabling a qualified applicant with a disability to be considered for a position; (ii) changes to the work environment, or to the way a job is usually done; and (iii) changes that enable an employee with a disability to enjoy the same benefits and privileges of employment (such as access to training) as other employees.
6.11 There is evidence of reluctance by employers to hire people with mental ill-health as less than 40% of UK employers said they would recruit people with mental health problems (Morris, 2006). 68% were unsure or
disagreeing as to whether employers would be understanding or supportive of depression in the workplace. A third of employers, in an attitude survey commissioned by the NDA in 2002, stated that their employment criteria would be different for people with mental health difficulties, as compared to people with a disability generally.
The Business Argument
6.12 The World Health Organisation argues that employers need to recognise mental health issues as a legitimate workplace concern (WHO, 2000). They make the case that good health equals good business. Certainly the challenge to retain experienced staff in a competitive economic climate is added pressure on employers to adopt an inclusive approach. Such an approach can:
— Reduce absence;
— Create better work relations;
— Enhance productivity and motivation; — Make the workplace more efficient; — Foster acceptance and diversity; — Employ the best person for the job; and — Gain and retain important skills (WHO, 2005b).
6.13 Richard Layard argues that depression, anxiety and other forms of mental illness have taken over from unemployment as the greatest social problem in the UK (Layard, 2004; 2006). He points out that there are “more mentally ill people drawing incapacity benefits than there are unemployed people”(2004: 2). In the United States, the Partnership for Workplace Mental Health (2006) produced A Mentally Healthy Workforce: It’s Good for Business,a focused report outlining the business case for employers to help them move towards having mentally healthy workforces. They argue that investing in action early on can lower total medical costs, increase productivity, lower absenteeism and decrease disability costs. The key points include:
— The high incidence of mental ill-health in the workplace and that more workers are absent from work because of stress and anxiety than because of physical illness or injury;
— The cost to employers of $80 - 100 billion in indirect costs related to mental ill-health and substance abuse annually;
— Treatment for ‘mental disorders’ is highly effective, with 80% of individuals with depression recovering fully;
— Ignoring mental ill-health is costly as untreated mental ill-health costs more; and
— Adopting a proactive approach, linking with health services and in the community and spreading the word i.e. being open about policies and innovations.
6.14 Impact on Business
The Surveysasked employers to think of any problems that might arise at work from mental ill-health among employees:39%thought it increased absenteeism;26%thought that relationships with other employees suffer and 25%thought it reduced work capacity.
6.15 There are other less obvious costs involved with mental ill-health in the workplace. Mentality (2003) outlines the following:
— Poor performance;
— Staff illness and shortages that can threaten quality of service or product supplied;
— Reduced morale; — High staff turnover; — Early retirement;
— Providing temporary cover;
— Complaints and litigation associated with problems; and — Costs to government of health care and rehab.
Mental Health Policies
6.16 In the UK, in a Confederation of British Industry (CBI) survey of over 800 companies, 98% of respondents recognised the importance of mental health to their employees and acknowledged that there should be a mental health policy for staff. Yet the analysis points out that most companies do not have an official policy on mental health (ILO, 2000).
6.17 Without policies in place, it is unlikely that companies will be able to support staff in caring for their mental health. Wynne and McAnaney (2004) argue that workplaces should adopt more proactive and interventionist approaches to managing sickness absences.
6.18 The benefits of developing policies can be multiple. According to WHO (2005b), organisations adopting healthy guidelines and programmes have experienced major improvements in their human and business conditions.
6.19 Mental Health Policies in Irish Workplaces
The Surveysfound thatonly one in five companies have a written policy on mental health (see Figure 6.1 below).
Only 41%of employers had guidelines for dealing with mental health in the workplace.
75%of employers agreed29
they did not know enough about the law regarding mental health in the workplace.
Just over half (55%) agreed that“the managers in your organisation have a good understanding of mental health issues.”
29 The term “agreed” is used here to refer to those who either “strongly agreed” or “agreed” with the statement provided and “disagreed” refers to the combined percentage of respondents who “disagreed” or “strongly disagreed”.
6.20 That only 20% of employers had mental health policies in place, (see Figure 6.1) is very similar to results from a Scottish survey in 2006. In that survey, some of the same statements were also used so a direct
comparison is possible. 80% of Scottish employers did not have a mental health policy and 70% did not know enough about the law in relation to mental ill-health (The Shaw Trust, 2006). This contrasts with a recent study on bullying in the workplace by the ESRI (2007) which found that
approximately half of all organisations reported having a formal policy on workplace bullying.
6.21 The lack of policies in place was also noted in the Focus Groups.One employee commented,“they have guidance on the wall, what to do if someone breaks their arm, but nothing for depression. What do you say to somebody like…?”There was also an awareness of the limits of employers’ capability to respond to mental health issues. One employee said,“you can’t expect the company to be going round asking everybody how are you doing, how are you keeping, how is the auld head there?”
6.22 A recent EU seminar on mental health and well-being concluded it is more effective to consider mental health and stress in the workplace in terms of preventative activity, rather than as the response to mental health problems (SUPPORT, 2006). The following paragraphs set out some international and Irish projects and initiatives which have been successful in health promotion and mental ill-health prevention.