Health and Safety is something all employers are familiar with. Risk assessments, HS Managers, public and employer liability. It’s an issue every business, regardless of size or industry, has faced.
One of the many health and safety procedures businesses will have is having a designated first aider. The first aider is the first port of call in the event of a workplace injury or illness. However, the role of a first aider is very much limited to a physical injury or physical illness: cuts, bruises, vomiting etc.
A recent campaign wants to promote parity between mental and physical health and enforce an obligation for businesses to have mental health first aiders to help address workplace mental health issues.
The campaign has been heavily backed and is seen as an important way to reduce the impact mental health illnesses have on UK productivity. Currently, anxiety, depression, and stress is believed to cost the economy £99bn a year (12.5m working days).
However, how would this impact employment law? Well, firstly, it could impact the way protected disclosures are interpreted for whistleblowing claims. Currently one of the categories of protected disclosure is if “that the health or safety of any individual has been, is being or is likely to be endangered.” This is usually interpreted to mean physical health but should also cover mental health.
If it were to apply to mental health as well, there could be a sharp rise in people reporting practices that the whistleblower believes endanger mental health. Any detriment suffered as a result of this would give rise to a claim. The importance of this is that whistleblowing claims, like discrimination claims, have an injury to feeling award. This award is uncapped and will often be the largest part of any money awarded to the Claimant.
Likewise, sections 100 &44 of the Employment Rights Act 1996 relates to detriments or dismissal suffered due to reporting health and safety issues. Like whistleblowing, this legislation is focused on physical, not mental health and any change might see types or numbers of these claims increase. For s100 claims, the dismissal will be automatically unfair and have a minimum basic award of £6,203 on top of any other damages.
Therefore, if mental health is to be rightly given equal treatment to physical health, employers need to be careful of the litigation and financial liabilities which might arise.