By Euan Bruce, ?Senior Associate at DLA Piper

A RECENT study by NHS Scotland found that the number of Scots being prescribed antidepressants has risen from 6.1 million last year to 6.4 million in 2017. With the NHS in Scotland spending £44.6m a year on medication for patients suffering from mild-to-moderate depression or anxiety, managing mental health in the workplace is more important than ever.

The increase can perhaps be explained, at least in part, by the fact that both employers and employees are becoming more aware of mental health issues in the workplace. However, there is still a hesitancy for some employers to engage with employees who are, or may be, suffering from mental health problems. This lack of engagement can often exacerbate issues or allow them to fester.

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From an employment law perspective, it is important to highlight that there is no difference between mental health and physical health. In either case, if the impairment causes a significant and long-term effect on the individual then it will be classed as a disability. The employer will then be obligated to ensure that reasonable adjustments are made to accommodate the employee and that they are not otherwise discriminated against. The definition of a disability also differentiates someone with an underlying mental health condition from someone who suffers stress as a response to a stressful situation.

The difference between a physical and a mental condition lies in identifying the issue and how it is managed. A broken leg or an infection are readily identifiable and have an immediate impact on the employee. Mental health issues, on the other hand, will build over time. The employee themselves may not even recognise the impact of the condition and may not seek medical assistance as a result. In such scenarios, the intervention of a colleague on a personal level can make the key difference in getting the employee to open up.

Once an issue has been identified, it is important to keep the lines of communication open, ideally with a single point of contact to ensure consistency and to develop an understanding of the employee’s condition. Medical advice will also be key to understanding the employee’s prognosis and what they can and can’t do. However, care should be taken to ensure that the medical advice is appropriate. Some GPs lack the time and training to adequately deal with mental health issues and a fit note gives little real insight as a result. Sending an employee to occupational health often does not mean that a psychiatric specialist will be involved. If asking for a medical report on the employee an employer should also recognise that if they make a very general request for information, they can expect a very general response. If they want to understand specific aspects of the employee’s capability then they have to ask the question.

Mental health and how to deal with it will vary from person to person and there is no easy answer or single process which can be followed. The employer is expected to do what it reasonably can to ensure that the employee can return to work and carry out their role. However, there is a limit to this. Work is all about fulfilling requests, dealing with employees or members of the public and is often stressful. An employee is engaged and paid to meet those requirements. If their mental health means that they are not capable of fulfilling their role and they have been provided with reasonable support and the opportunity to improve, then an employer is entitled to bring their employment to an end.

SAMH (Scottish Association for Mental Health) is the local charity partner of DLA Piper in Edinburgh.