Employer’s duty to safeguard employees’ mental health | Howells Solicitors
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Employer’s duty to safeguard employees’ mental health

Howells Solicitors

26 Mar, 2020

After a week of unprecedented Government intervention the UK is now approaching the eye of the virus storm. However, this does not mean businesses cannot be planning for the future. On the contrary, business now have time to take stock, be creative and engage with those tasks that often get placed in the “when we have time” pile.

The duty to safeguard employees’ mental health

One task that should be always at the forefront of an employer’s mind is the health and safety of its employees. The majority of businesses are already well aware of their duty to preserve the physical safety of their staff. Yet, a new dimension of this long held duty is evolving at pace and requires employers to urgently address their minds to it – employers duty to safeguard employees’ mental health.

Why is safeguarding employees’ mental health important?

The Health and Safety at Work etc. Act 1974 (the “Act”) imposes legal obligations on employers. In particular section 2(1) HSWA states:

It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (Emphasis added by author)

Not only can an employee bring a claim against their employer if this duty is breached, but the Health and Safety Executive (the “HSE”) can also prosecute the employer and / or directors or senior management of that business.

If convicted the direct penalties include fines, disqualification of a director and imprisonment. However, it is also important to consider the indirect consequences of a conviction which include adverse PR, possible insurance premium increases and disclosing convictions when tendering for business.

How can employers comply with their duty under the Act?

The duty is to ensure the health, safety and welfare of all employees so far is reasonably practicable. This means that what might be reasonably practicable for one employer may not be for another. In determining what is reasonably practicable, several factors need to be taken into account including the industry in which they operate, the size of their business and the cost of implementing measures measured against the risk.

As with any risk to health and safety, employers are required to undertake an assessment of the mental health risks that their employees are exposed to. Such risks may include employees suffering anxiety, stress or depression as a result of the working environment or their job role.

Once these risks are identified – and there is a positive duty to identify risks which are not obvious – then the employer must implement all measures to reduce these risks so far as is reasonably practicable. In relation to mental health this may include more flexible working arrangements, realistic targets or counselling support. However, there is no “one size fits all” package and each business requires tailored advice to meet their need.

It is risk of harm rather than actual harm that is important

There is a misconception that employers can only be prosecuted by the HSE if there is an actual injury – physical or mental. Wrong. An employer can be convicted if (1) their employees are exposed to risks to their health during work associated with their employment; (2) those risks to which their employees are exposed are more than trivial or fanciful; and (3) the employer has not done all that was reasonably practicable to reduce the risks.


These are uncertain times but we will get through it. The question for employers is how are these times of reduced trading going to be spent? At Howells we are optimistic for the future and want to help businesses use this time to get on the front foot when normality resumes. If your business is confused by its regulatory obligations do not hesitate to contact our regulatory team who will be happy to discuss how we can help.

You can contact Howells’ new regulatory team by emailing enquiries@howellsllp.com or calling:

Sheffield0114 249 66 66

Barnsley: 0122 680 51 90

Rotherham0170 936 40 00

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