James Storke on Mental Health Issues in the Advertising Sector

It is estimated that 91 million working days are lost each year in the UK due to mental ill health and that this results comes at an annual cost of £30 billion for UK businesses. Further, approximately two million people currently have mental health problems that are caused by work related stress. Although this is an escalating issue for many sectors, it is particularly a concern for the advertising industry, with employees often working long hours to tight deadlines and being under constant pressure to perform. It is therefore crucial that employers can recognise and deal with mental health issues, understand the key legal issues and actively operates in a way to promote good mental health.

Identifying mental health problems

Employers within the advertising industry should be alert to the following which may indicate that an employee is suffering from a mental health issue:

• Psychological signs - demonstrating long periods of sadness, low motivation, intolerance of others, performance problems, difficulty making decisions or concentrating on tasks, evidence of anxiety, poor timekeeping.

• Physical signs – slower movement or speech, change in appetite / weight, complaints of aches and pains, looking tired, more aggressive or passive.

• Social symptoms – reduced activity with colleagues, neglected hobbies, difficulties at home, uncommunicative behaviour.

Because of the stigma attached to mental health, employees are often reluctant to raise the issue with their employer. Changes in behaviour or appearance often happen slowly and so can be difficult for employers to spot the problem. Further, managers can be reluctant to intervene. This may be due to a combination of factors such as they feel they may have contributed to the employee’s ill health; they feel out of their depth or they feel awkward about discussing such a personal issue. However, ignoring the problem is almost certainly going to make it worse. Managers, therefore, need to be proactive, but employers must equip them with the necessary skills so they can confidently identify and address mental health issues. This means giving them the necessary training and support.

The legal issues and risks

If an employee’s mental health condition is sufficiently serious, they will be deemed to have a disability. Disabled employees have considerable legal protection and employers owe them duties, not least the obligation to make ‘reasonable adjustments’ to remove any substantial disadvantage being suffered in the course of employment.

The test for what is ‘reasonable’ is judged by reference to such factors as the extent to which it will prevent the disadvantage, the size of the employer, the financial resources available and the practicability of the adjustment. Therefore, the typically well-resourced and sophisticated businesses in the advertising industry will have a high hurdle to get over to argue that a particular adjustment was not reasonable.

Examples of reasonable adjustments include:

Altering an employee’s working schedule.

Changing an employee’s duties or role.

Allowing time off for medical appointments.

For those employers who get it wrong when it comes to dealing with employees with mental health issues they can face claims for:

Disability discrimination - less favourable treatment or discrimination arising as a consequence of disability

Failure to make reasonable adjustments

Harassment - unwanted conduct related to disability which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Personal injury - where an employee suffers from a recognised psychiatric illness as a result of the employer’s negligence.

Unfair or constructive dismissal 

Guidance for employers

It is clear that ‘prevention is better than cure’ when it comes to dealing with mental health. Employers should therefore strive to adopt working practices that do not place employees under undue stress. On a practical level, managers should therefore think about setting reasonable deadlines, consider the effects of heavy workloads, help employees prioritise their work and look out for sign of work-related stress.

If an employee has a mental health condition, it is important that it is acknowledged and actively addressed. Consultation with the employee is key. It may also be necessary to obtain medical advice as to what steps could be taken to improve the employee’s situation

James Storke is a partner in the employment team at Lewis Silkin LLP