The HSE recently publicised its long-term strategic commitment to reducing work-related ill health, with a specific focus on mental health and stress[1]. It has now been confirmed it will investigate potential breaches of mainstream health and safety legislation regarding work-related stress conditions, in circumstances where it identifies several employees experiencing symptoms and wider organisational failings.
Earlier this year, the HSE confirmed active investigations concerning suspected organisational failures in managing mental health risks. Considering the substantial number of workdays lost each year to poor employee mental health and several recent high-profile suicide cases tied to job-related stress, businesses should anticipate more investigations in the upcoming months and years.
Organisations that fail to demonstrate reasonably practicable measures to mitigate risks to employees’ health and safety could face severe regulatory penalties. These can include turnover-based fines and even custodial sentences for directors and managers.
Organisations should take action to maximise not only their defensibility but also their productivity.
Health and safety is traditionally viewed as the physical protection of people in the workplace. The HSE’s regulatory oversight has significantly improved the physical safety of workers, resulting in the UK now having one of the lowest rates of fatal and non-fatal work-related injury across Europe. Well-established safety standards across various industries in the UK have contributed to reducing deaths and major injuries, particularly in the construction and manufacturing sectors.
The overall image of work-related mental health conditions like stress, depression or anxiety does not mirror the positive picture of workers’ physical safety. There were 900,000 self-reported instances of work-related mental ill health during the period 2022/2023, compared with 135 fatal incidents over the same timeframe [2].
This can also have a knock-on safety impact, as it stands to reason that employees suffering with poor mental health may be less likely to follow recognised safe working practices, with serious consequences in potentially high-risk environments.
Organisations also can’t overlook the fact that good mental health is good for business, with the HSE estimating that in 2023 there were 17.1 million working days lost due to work-related stress, depression or anxiety[3]. A present and happy workforce is more likely to operate both safely and productively.
With organisations often viewing their people as their most important asset, employee mental (as well as physical) health is moving up boardroom agendas, particularly given the introduction of remote and hybrid working (which appears to be a permanent post-pandemic fixture for many businesses).
Recent safety-related prosecutions in the UK have demonstrated the expectation that organisations take a people-based approach if risks relating to specific employees are identified. A large supermarket chain was fined £3.5 million in 2023 after a worker with epilepsy suffered fatal head injuries, after experiencing a seizure and falling down the stairs he was using to access his locker on the first floor of the shop. The subsequent investigation and prosecution highlighted that a personal risk assessment had not been carried out for the employee, which would have identified appropriate safety adjustments, such as moving his locker from the first floor to the ground floor.
The above case, albeit an instance of physical safety, offers an insight into the lengths organisations may need to go to demonstrate compliance with the HSE regarding employee mental health and wellbeing. Whilst time will tell if the HSE pursues prosecutions in this area, businesses should act now to ensure they are not subject to potential enforcement action further down the line.
The HSE’s long-term commitment to the regulation of mental health and wellbeing in the workplace is likely to follow its previous strategic campaigns in other areas, such as the dangers surrounding asbestos and welding fumes. Initial steps to raise awareness of the risks and educate the working world may well be followed by tougher enforcement action.
The first part of this strategy is already underway; the HSE now offers free guidance and resources through the launch of its ‘Working Minds’ campaign [4] in 2023, which it has promoted through partnerships with construction and entertainment industry bodies.
It may only be a matter of time until the HSE pursues regulatory prosecutions relating to organisational failures in managing employee mental health and wellbeing.
With the HSE’s historically high enforcement success rate – approximately 94% of the cases prosecuted result in convictions [5] – businesses should seek to avoid enforcement action at the outset by ensuring they can demonstrate, if requested by the HSE, evidence that their employees’ mental health and wellbeing is considered as part of their overall business management structure.
The HSE will want to see evidence that organisations are viewing mental health and wellbeing in the same way they do the physical safety of employees. The primary goal for businesses should be to establish a structure that not only identifies and addresses the root causes of poor mental health in the workplace but also recognises and protects against specific instances of poor mental health as and when they occur. This should be achieved through a risk-based and person-centred approach.
This must be supported by written documentation that details how organisations monitor and maintain the mental health of their workforce. This includes written policies, stress risk assessments, and records of actions taken to monitor and address any instances of poor mental health.
Our risk management specialists are here to advise on potential triggers for health and safety enforcement proceedings and to offer guidance on enhancing your existing systems and procedures to help avoid regulatory action.
For a smarter way to manage your risk, please get in touch to speak with one of our sector specialists.
