Movember: Employment & mental health rights in the workplace
Each November, the global ‘Movember’ campaign brings attention to important men’s health issues, including mental health, prostate cancer, and testicular cancer. In more recent times, the Movember movement has brought a particular emphasis to mental health awareness, which is major concern for everyone – not least because it is often difficult to spot individuals who may be struggling with mental health issues. Members of the team at BCR Law have taken part in this year’s Movember to raise funds for Mind Jersey, a mental health charity in Jersey that continues to provide invaluable support to individuals struggling with their mental health.
Mental health is an ever-growing concern in the workplace. Companies are increasingly recognising their responsibility to support the wellbeing of their employees. Movember provides an opportunity, not only to raise awareness, but also to promote a culture of openness and support surrounding mental health challenges. The rights of, and protections for, employees in respect of their mental health are largely governed by the employment, discrimination and health and safety legislation. Understanding these rights is essential for both employers and employees to ensure a safe and supportive work environment that promotes mental wellbeing.
Legal protections against discrimination
Employees in Jersey are protected against discrimination under the Discrimination (Jersey) Law 2013. This includes discrimination during the course of an individual’s employment, ensuring that employees are not treated unfairly based on a protected characteristic (such as race, age, sex, disability). Crucially, mental health conditions may be considered a disability if they are severe and long-term, and therefore, an employee will be afforded protection. This includes conditions such as anxiety, depression, bipolar disorder, schizophrenia, and other serious mental health conditions. It is unlawful for employers to treat an employee less favourably (whether directly or indirectly) due to their mental health condition (if it qualifies as a disability). It is also unlawful for an employee to be subject to harassment relating to a mental health condition.
Employees with mental health issues have the right for an employer to incorporate reasonable adjustments into their working environment. Such adjustments may include flexible working or modifying job responsibilities (with that employee’s consent) to enable an employee to better manage their condition. An employer may also offer time off for medical appoints, or mental health-related sick leave. Employer’s may wish to provide training, or awareness programmes to colleagues about mental health and how one may support a colleague with mental health conditions. Prudent employers should engage with the employee with a view to identifying potential appropriate adjustments. An employer’s obligation, however, is limited to that which is considered reasonable, in the circumstances of that particular matter. Such considerations will include: (1) the size of the business, the nature of the work, and the costs of any potential adjustments.
Rights to confidentiality and privacy
If an employee discloses a mental health issue to their employer, the employer must treat such information with the utmost care and confidentiality. The Data Protection (Jersey) Law 2018 provides that:
- Employers must ensure that information relating to an employee’s mental health condition is strictly kept private, unless the relevant employee provides consent to the employer to share the information with others.
- In practice, mental health disclosures by an employee should be treated in the same way as other sensitive medical information. It should only be shared with individuals that need to know (for example HR personnel responsible for that particular employee, or an occupational health officer).
Employees cannot be forced by their employer to disclose a mental health condition. However, if a condition impacts on that employee’s ability to perform their duties, the employer may reasonably request information, or evidence, to help it to better understand the situation and consider what the appropriate support for that employee may look like.
Absence from work
Employees dealing with mental health issues may need to take time off work. Employees are entitled to sick leave pursuant to Jersey law. This is the same whether an employee is suffering from physical health conditions or mental health conditions. However, an employer is not obliged to provide sick pay when an employee is off ill. The terms of an employee’s contract will set out what sick pay an employee may be entitled to. If there is no provision for sick pay within an employee’s contract, the employee may have recourse to short term incapacity allowance.
If an employee is off work for an extended period, the employers may request a medical certificate, or other evidence of the illness. An employer should offer as much support as possible to employees returning after a period of absence due to mental health conditions. Employers should consider whether a phased return to work may be appropriate, as well as ensuring that any workplace adjustments are put in place.
Workplace Stress
Employers have a duty to provide employees with a safe working environment pursuant to the Health and Safety at Work (Jersey) Law 1989. Employers must take reasonable steps to ensure the mental and physical health and safety of their employees. An employer must take active steps to manage workplace stress, which may in turn lead to mental health issues. Employers should consider what risks may arise in a particular workplace and take active steps to manage the same. Examples in respect of mental health may include an employee having unreasonable workloads, tight deadlines, a lack of support and poor communication from the employer, or agents of the employer.
Employers should:
- Take steps to create an open and supportive workplace culture.
- Consider what wellbeing initiatives may be put in place.
- Consider the provision of training on mental health issues for managers and other employees to develop a supportive work culture.
The above is intended to enable employees to feel more comfortable and allow them to discuss mental health without fearing stigma or discrimination.
Movember and support and resources for employees
Movember is an important initiative that highlights mental health in the workplace. Movember aims to reduce the stigma around men’s mental health challenges and to encourage open conversations about mental health in the workplace. This can be done by:
- Encouraging Dialogue: Movember can serve as a platform to encourage employees to openly discuss issues surrounding mental health. The aim should be to create an open, safe and non-judgmental atmosphere for employees.
- Workplace Campaigns: Employers can promote Movember through workplace initiatives such as the ‘grow the mo’ competitions and fundraising. This can be partnered with the provision of resources on mental health, all with a view to normalising discussions surrounding mental health issues.
- Mental Health Support: Employers can highlight available resources for support with mental health issues. Some Employers provide Employee Assistance Programmes or counselling services. Others may highlight local mental health charities such as Mind Jersey, which provide support for employees facing such challenges.
Mental health is becoming an increasingly important issue in the workplace and most employers are actively taking steps to create the environment necessary to help protect employees who may struggle with mental health issues. The current legislation in place provides some protection for employees facing mental health challenges and it is anticipated that further protections will come in to force over the coming years. If, as an employee, you consider that your rights in respect of mental health are not being respected, you have a number of support channels available. A starting point is always a conversation with your employer, however, in some instances, an individual may not feel comfortable doing so.
Mind Jersey is an incredible organisation which provides individuals with great support. If you consider your legal rights are not being respected, you may wish to get in touch for an initial discussion. To donate to our Movember Movement and help raise funds for Mind Jersey please donate here.
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The Discrimination (Jersey) Law 2013
Health and Safety at work law guidance