Is “Working Minds” working?
Carl Gustav Jung was a Swiss psychiatrist and psychoanalyst who founded analytical psychology, an observation of his captures the huge complexity and diversity of mental health problems:
“About a third of my cases are suffering from no clinically definable neurosis, but from the senselessness and emptiness of their lives. This can be defined as the general neurosis of our times.”
Those of you who have read the HSE’s ten-year strategic plan and its 2022/23 Business Plan will know that it has made clear an intention to focus its efforts “on areas of greatest health and safety challenge”. Tackling work-related stress and mental health is one of those areas, and one which HSE – I would suggest – is going to find very difficult to crack.
The International Labour Office’s “Mental Health in the Workplace” paper estimates that at any given time, approximately 20% of the adult population have a mental health problem.
The scale of the challenge is truly mind-boggling.
What’s been done so far?
HSE has previously said more than 17 million working days were lost in the UK in 2021/22 due to stress, anxiety, or depression. Its response was to launch its “Working Minds” campaign aimed at helping businesses recognise the signs of work-related stress and make tackling issues routine.
In tandem the HSE called for a culture change across Britain’s workplaces to ensure psychological risks are treated in the same way as physical risks in health and safety risk management.
There is a campaign website – “Work Right” set up by HSE, encouraging organisations to join, access the “partner toolkit”, become “champions” and spread the word.
A standard feature of any good campaign is to devise a tortured alliterative or other memorable “solution”. I present the HSE’s Five-Rs:
- Reach out
- [Make it] Routine
What the Five-Rs mean:
- Reaching out encourages employers and workers to communicate clearly if issues are brewing.
- Recognising is the means of spotting problems before they get worse.
- Respond encourages taking active steps to lessen the impact of risks to mental health risks.
- Reflection means allowing workers and employers to think about how they behave in the workplace and what they can do to make the environment a safer space.
- Routine encourages enshrining best practice, lessening the likelihood of problems arising in the future, making sure businesses have protecting the good mental health of their workers at the heart of their Health & Safety Management System.
The difficulty with all this good stuff is trying to gauge its success. One year on, there is little in the way of comparative data available, but I concede it is probably too early for such information to have been collated or published. What we do know is that HSE has been sufficiently encouraged by the response to Working Minds/Work Right to extend and push on with the campaign.
What can we do?
The short answer is “what the law tells us to”.
The Management of Health and Safety at Work Regulations requirement for suitable and sufficient risk assessment covers work-related mental health issues. They must be assessed to measure the levels of risk to employees and where a risk is identified, steps must be taken to remove it or reduce it as far as reasonably practicable.
Failing to do so and being in breach of the regulations or of general duties to safeguard employee health, safety and welfare may amount to criminal offences under the Health and Safety at Work etc Act 1974 (“HSWA74”).
What if we don’t?
Here is where from an enforcement point of view, things break down.
There has never been a HSWA74 prosecution of any sort in a mental health-related case.
While improvement notices have been issued in a small number of stress cases, there have been none in the last five years.
Lawyers and commentators have speculated that a stress-related prosecution is only ‘a matter of time’ but the fundamental challenges of establishing a causal link between workplace failings and employee mental health (due to the diffuseness, long-latency, and invisibility of the latter), and setting out what a criminally culpable failure to manage health and safety might look like (given that stress arises by degree, is hard to control, and requires systemic prevention), mean that the legal duties in this area are not just unenforced, but perhaps unenforceable via the criminal law.
Being blunt, an increased societal awareness of the consequences of poor mental health has not translated into truly effective legal protection, and there is a need to at least consider an enforcement framework capable of supporting workplaces that are economically productive, sustainable in practice, and psychologically beneficial and punishing those that are not. We can all get behind the carrot – but where is the stick?
By Tristan Meears-White, Specialist Consultant Solicitor