Mental Health Solutions in Business Ltd asks that the Government prioritizes a a program to better aid employers meet fresh challenges and duties of care set out under the revised Equality Act 2010 .
The Act’s updated sections 20 -22 and section 60, which cover mental health and well-being in the workplace, require significant and informed action by employers.
The Equality act 2010 contains a mandatory duty to protect employee mental health and accommodate related disabilities. This section within the act gives no regard to employer’s ability to deliver that duty of care.
This is a common law act that, since 2010, has been frequently updated and modified, often with no direct pre-notification for employers.
We are at a crossroads for equality and human rights in Britain and its clear that the Government has rightly put stronger emphasis on the mental well-being of employees. However it is expecting employers to comply without mechanisms that aid change and In this case these simply aren’t there. There are no regulators, inspectorates or ombudsmen – the  very people needed to protect employers and employees and uphold a base-line standard.
Commitment to include mental health policies and procedures is there and small businesses accept that there’s a responsibility, however they have no clear and attainable guidelines. We would suggest that this is unfair and, worse, sets up UK SMEs to fail.
There are economic and human reasons for protecting mental health in the workplace. Together they present a powerful case for professional handling and to ensure that employers’ response is correct, appropriate and helpful.
We are calling for government guidelines setting out mandatory steps which will help employers protect staff, and consequently protect themselves against the rise of mental health-related employment tribunals. 
As the board of a professional online mental health counselling service with more than 200 qualified therapists, we are speaking from experience when we predict the consequences of no action.
We ask that the government reflect that SME s are the back bone of the UK economy accounting for 70% of businesses.
Because of their size, most SME businesses have no access to skilled HR professionals. Employers are not trained mental health counsellors and have little or no legal training – both of which are required if they are to comply.
With the abolishment of tribunal fees in 2017, the tribunals route has become more accessible. Employers need a trusted and assured guide and a preventative control mechanism which currently does not exist.
Employers are in a situation where successful defence to non-compliance of the Equality Act in an employment tribunal is - at best - good luck. Ignorance is no defence, but when that law has been passed without provision to support those intended to uphold it, it is neither good for employers or employees; and is grossly unfair on both.
Further, tribunals won’t accept cost as a legitimate defence for an employer’s failure to act; nor can the lack of the implementation of reasonable adjustments be defended.
Any business has a skills set that is common to all, whether it makes knitwear or farms sheep. These are the standard pillars of business – from accounting and arranging sales and marketing to recruitment and investment.
It is fair to say that a well-developed understanding by businesses of the issues surrounding mental health and wellbeing are not among that standard skills set that goes with simply running a business.
Consequently that lack of understanding can be pointed to as one of the (but not the only) root causes of the rise in mental health-related employment tribunals.
The current legislation is open to interpretation under the powers of the tribunal courts and its judiciary, who themselves get it wrong from time to time. In the long run creating a national standard for mental health procedures and policies in the work place that is mandatory is the right step forward; but only if it is supported and policed by regulators, inspectorates or ombudsmen.
SME’s are being asked to accomplish the impossible - implement common law sections and acts without the skills and guidance to do so. They face punitive fines and costs which threaten the survival of their businesses, while updates and rules continue to change without pre-notification. Helping SME’s stay up to date on legislation should never be a DIY exercise – it will fail, they will fail.
Clearer legislation rules and guidance will ensure employers across the country can be properly prepared and trained to appoint mental health ambassadors and adopt policies and procedures in each business. This also can only be good for employers and employees.
Heavily publicly promoted regulators, inspectorates or ombudsmen will aid with preventative measures for employers and employees to follow from the out- set, these would be more advantageous than a conciliatory service like ACAS. While ACAS’s role is important in mediation it is still a reactive service, not a preventative one. Prevention is better than a cure.
Most SME’s and employers are already aware they need to change their attitudes around mental health in the workplace, so the oversight of mechanisms to do this in a crystal clear way must be addressed urgently but with the capabilities and resources that employers need readily available.
Let’s change this together. Let’s encourage our SMS’s to be mental health confident and let’s give them clearer and better access to rules information and laws around mental health in the workplace. Let us as employers be proactive with our preventative measures. Let’s address the oversights, look at standard-setting mechanisms and in turn, conduct influencer engagement and promote compliance and enforcement processes that will benefit everyone – and help stamp out the fear and stigma of mental health in the workplace.