New Thoughts about Stress at Work

Duties to adjust – Duties to keep data safe

Recent research shows that the words 'stress', 'mental health' and 'depression' appeared in more than 12,000 employment tribunal cases in one year , illustrating the importance of this topic within workplace related disputes. And recent statistics say more than 3.3 million people in Britain receive Personal Independence Payments( PIP) to help with the extra cost of living with a physical or mental health condition and/or disability.

Employers need to know how to support staff who are experiencing mental challenges at work and how scenarios they encounter fit in with employment and equality laws as well as other legislation covering data protection and safety.

While the law already imposes a duty on employers to make reasonable adjustments for disabled people under the Equality Act 2010, statutory regulators are now publishing their own extra guidance around mental health in the workplace. These bodies make the point that Data Protection and Reasonable Adjustments are critical considerations that should feature in your policies and procedures.

One of these bodies, ACAS, have published guidance for making reasonable adjustments for mental health. More recently, the Information Commissioner’s Office (ICO) published guidance around information sharing in mental health emergencies at work.

A key step therefore is to seek and follow the advice of the ICO who oversees data protection regulations and ACAS who provide free and impartial guidance on all aspects of employment law.

Data Protection-The ICO

Mental health information is quite rightly highlighted by the ICO as one of most sensitive forms of personal information. Their new guidance helps employers remain compliant with Data Protection law where there is a risk of serious harm to a worker or others which necessitates the sharing of mental health information. It emphasises that organisations should share necessary and proportionate information without delay, with relevant and appropriate services such as emergency services and health professionals. The guidance also extends this scope to include an employee’s next of kin but highlights that there are instances where sharing all information with them may be inappropriate.

Do your data protection policies  provide for such situations so that you are prepared and know the steps to take should you need to respond in a live emergency?

The ICO also recommends that employers plan ahead. Such plans could include maintaining up to date emergency contacts with relevant consents.

However, the ICO is clear that employers do not have carte blanche to share any and all mental health information in such situations. Key data protection law principles around the sharing of personal information still apply in mental health emergencies. Employers should consider both the lawful basis and special category condition that justifies a proposed disclosure. Employers should therefore carefully consider how they will justify their decision making because what is deemed an appropriate disclosure may differ depending on the particular circumstances of each case.

Reasonable Adjustments -ACAS

ACAS carried out  a UK review into work adjustments for mental health at work and their subsequent guidance  aims to level up the country to improve mental health and wellbeing.

ACAS  recommends that employers try to make adjustments regardless of whether the employee is disabled which goes further than the duty imposed by the Equality Act 2010. Employers should keep in mind that although the guidance is titled ‘reasonable’ adjustments for mental health, whether an adjustment is truly reasonable in the circumstances can only be determined by a tribunal. The facts and circumstances of each employee are considered on their own merit.

The guidance provides examples of possible adjustments to an employee’s working environment, policies and working relationships, such as relocating someone's workspace to a quieter area to reduce sensory demands and agreeing a preferred communication method to reduce anxiety. The written guidance is a step towards better understanding of mental health at work, however it is unable to provide adjustments for specific mental health conditions and is not a substitute for GP or Occupational health advice.

In summary

Both sets of guidance will help employers make considered decisions, and we may soon see  see either set of guidance cited in major tribunal or regulatory decisions.

The ICO guidance provides welcomed clarification to employers as to how to balance its legal obligations with practical emergency situations.

The ACAS guidance is a helpful toolkit that will undoubtedly enhance the employment relationship and support employees in communicating their needs through the inclusion of template letters.

QED Support

Our training courses and policy consultations on these and related topics always attempt to:-

• Join up the dots between the various set of laws

• Showcase in a practical way how the various guidance notes can     be threaded into your prevailing practices and procedures

• Bring the latest breaking news on tribunal decisions

• Benchmark  best practice from a wide range of sources across all     sectors

These courses include:-

• Equality, Diversity and Inclusion

• Employment Law

• Managing Stress

• Neurodiversity

• Privacy and Electronic Communication Regulations

• UK GDPR Data Protection

• Welfare Benefits

Policy audits and consultation services are also available on these and many other topics.

Get in touch for details