Briefing: Mental health in the public and private sectors

02 Oct 2023

World Mental Health Day takes place on 10 October. It is an opportunity for people and communities to unite behind the theme 'Mental health is a universal human right' to improve knowledge, raise awareness and drive actions that promote and protect everyone’s mental health as a universal human right. Mental health is a basic human right for all people. Everyone, whoever and wherever they are, has a right to the highest attainable standard of mental health. This includes the right to be protected from mental health risks, the right to available, accessible, acceptable, and good quality care, and the right to liberty, independence and inclusion in the community. This briefing looks at how the responsibility to protect this right differs between the public and private sectors.

“Every person’s basic human rights and freedoms are protected by the law and are based on concepts such as dignity, fairness, respect and equality", says Lewis Nedas Law, a London-based law firm. “The Human Rights Act 1998 incorporates the guarantees under the European Convention of Human Rights into UK domestic law. Under the Convention, there are a range of protected rights including those to life, from discrimination to privacy and to impartial trials.

“The Human Rights Act protects workers’ rights and freedoms so long as they work in the public sector (such as the Courts, local authorities, NHS organisations, the police, the prison service and education authorities). Those in the private sector are not covered by the Human Rights Act but many of these rights are incorporated into general employment law (such as the Equality Act 2010), which applies to all employees.”

Public authorities
Employees can bring a claim against a public authority employer directly for a breach of a right set out in the Human Rights Act (HRA). Public authority employers include the police, the government, local authorities, the NHS, and so on.

Semi-public authorities
Private bodies that carry out public functions are also defined as public authorities, but only insofar as they are carrying out their public function. The relationship between employer and employee would normally be considered to be within the scope of their private function as employer, and any related acts to be outside the scope of their public function. This means that semi-public authority employers are affected by the HRA in the same way as private employers. Semi-public authorities include privatised utility companies, or a private security company exercising public functions in relation to the management of a prison.

Private employers
These are organisations that carry out no public function. The HRA is only indirectly enforceable against such employers, in that an Employment Tribunal’s decision about workplace conduct and workplace decisions must be compatible with the HRA. An employee cannot directly bring a claim for breach of the HRA, but may ‘attach’ a claim that the employer has breached the HRA to an existing employment claim, such as unfair dismissal. Therefore, if an employer were to have unjustifiably breached an employee’s human rights in its treatment of the employee in a dismissal situation, a Tribunal might find that the employer’s actions made the dismissal unfair. The Act sets out ‘justifications’ that an employer may be able to rely on, such as the prevention of crime, or the prevention of infringement of rights of others. Whenever a Convention right is breached by an employer, the breach must not only be justified but must also not go beyond what is strictly necessary.

Issues for employers
Susan Thomas of Charles Russell highlights some of key areas where the HRA might apply:

Disciplinary procedures
Disciplinary procedures must now satisfy ACAS’ statutory Code of Practice requirements and are therefore likely to respect the employee’s right to a fair trial, incorporating an opportunity to hear and consider the employee’s case and a mechanism for appeal. However, given recent decisions upholding a right to legal representation at disciplinary hearings in certain situations, both public and private sector employers should take advice before refusing legal representation where an adverse finding may affect an employee’s ability to practise a profession, even if the loss of such ability is not necessarily automatic.

Dismissal
Any dismissal procedure must also be fair, and any reason given for dismissal must not represent an unreasonable breach of a Convention right. For example, dismissing an employee on the grounds of membership of a political party may lead a Tribunal to find that the dismissal was not fair, since for a Tribunal to uphold such a reason for dismissal would represent an unreasonable breach of the employee’s freedom of expression.

Investigating a complaint
The investigation of an employee’s complaint or conduct should not involve breach of a Convention right. For example, one individual was awarded £10,000 compensation when her employer tapped her phone without warning during its investigation of her sex discrimination complaint. However, it was also later held that the actions of a public sector employer that undertook covert surveillance to track an employee’s movements were justified as the employer was investigating the suspected submission of fraudulent timesheets, which is a criminal activity.

Codes of Conduct
Codes of Conduct should be reviewed to ensure that they do not unnecessarily restrict an employee’s Convention rights. For example, provisions on how an employee wears their hair, or whether they wear a nose ring, could raise issues about the way an individual expresses his or her personality in the workplace.

Employee checks
The right to respect for private life may include matters such as moral or physical integrity, so that ‘private’ in this context means ‘personal’. This means that a security check that collects wide-ranging information about a person’s personal affairs may go too far. Also potentially unlawful is the practice of carrying out random drug or alcohol tests, as such testing is likely to entail an invasion of Article 8 – personal privacy. However, such testing could be justified if it was in the interests of public safety; for example, where workers are in high-risk situations such as pilots or train drivers. Employers should also ensure that any procedures such as security checks comply with the requirements of UK data protection legislation.

The law as it applies to private employers
Rosie Day, Associate with Clarion Solicitors advises:

“Employers owe a general duty of care to all employees. Particular duties are owed to employees who are ‘disabled’ under the Equality Act 2010. A person has a disability if they have ‘a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’."

Breaking this definition down:

‘Substantial’ means more than minor or trivial, and the effect of any medical treatment must be discounted;
‘Long-term’ means that the condition lasts, or is likely to last, at least 12 months, or is likely to recur; and
‘Normal day-to-day activities’ include things like using a computer, working set times or interacting with people.

Day continues:

“The definition is far wider than you might think. Employees with mental ill-health, for example, depression, anxiety or OCD, may be protected by the Equality Act. In considering what amounts to an ‘impairment’, the focus is on the effect of the employee’s mental health issue, not the diagnosis.

“For example, an employer’s refusal to consider an employee for promotion due to their mental ill-health could amount to direct discrimination. Equally, if an employee is bullied in the workplace because of their condition, this could amount to harassment. What is ‘reasonable’ will depend on the type, size and resources of the employer, the cost and practicability of the adjustment and, most crucially, the extent to which the adjustment will ameliorate the disadvantage."

Reasonable adjustments could include:

Allowing the employee to continue working from home;
Time off for medical treatment or counselling;
Adjusting the 'trigger points' in absence management policies;
A phased return to work, for example working flexible hours or part-time;
Changes to the role e.g. allocating some duties to another employee; and
Changes to the workplace e.g. allowing an employee with social anxiety disorder to have their own desk instead of hot-desking.”

Mental health also needs to be considered from a health and safety perspective. Pam Loch, Employment Law Solicitor and Managing Director of Loch Associates, discusses whether mental health is the responsibility of the manager:

“Clearly the COVID-19 pandemic has accelerated awareness of mental ill health in the workplace. However, the law has been clear for some time now that an employer has a legal obligation under health and safety legislation to care for the mental, as well as the physical, safety of staff at work. Looking after physical safety has been with us for many decades. Employers with more than five employees must have a health and safety policy and for all employers there are obligations under the Health and Safety at Work etc. Act 1974 and the Management of Health and Safety at Work Regulations 1999 (MHSW Regulations).

“What is often overlooked is that this applies to mental health and that there is also a legal duty placed on employees under Regulation 14 of the MHSW Regulations to look after their colleagues’ health and safety. Under health and safety legislation, employers are required to carry out risk assessments and provide employees with relevant training and information on the risks they face, and the measures put in place to control these risks. This is where there is a potential problem with mental health as opposed to physical health.

“While many managers are aware of their obligations to look after the physical safety of their teams, many are unaware of their and their teams’ obligations to look after the mental health of their colleagues. This is partly due to the lack of awareness and training provided by employers to their managers. Many managers therefore may also genuinely believe it is not their responsibility. While it has been a positive move by employers to train mental health first aiders, doing so may have reinforced managers’ views that it’s not their problem or responsibility. This is why employers need to revisit their obligations and update their approach to health and safety. Training for all staff (but especially for managers) is essential, so they recognise it is their responsibility to look after mental health, as well as physical health and safety.

“Managers also need to be informed and trained to know what to look out for and to spot any signs or issues and how to deal with the situation. Managers should then, as a minimum, cascade that downwards to their teams so that each employee shares the obligation to look after the mental, as well as physical, health of each other.”

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