Risk Dimensions Newsletter Issue 9: May 2023

In the latest edition of Risk Dimensions newsletter for solicitors, we focus on mental health resources for law firms. Lorna Feeney, Mental Health & Wellbeing Practice Leader, Marsh Advisory, as part of Health & Safety, discusses her perspectives on the current mental health climate for the legal industry, from a Health and Safety perspective. Louise Singh, Principal Associate at Weightmans LLP, also considers the responsibilities and risks for law firm employers when safeguarding employee mental health.

Options and benefits of mental health resources for law firms

Employees’ mental health in Great Britain

Author: Lorna Feeney - Mental Health & Wellbeing Practice Leader, Marsh Advisory 

The estimated number of workers in Great Britain suffering a work-related illness is 1.8 million, with stress, depression, and anxiety making up around half of these cases. According to the Health and Safety Executive (HSE) statistics on work-related ill health and workplace injuries, there were an estimated 914,000 cases of work-related stress, depression, or anxiety in 2021/22. Also during 2021/22, an estimated 17 million working days were lost due to work-related stress, depression, or anxiety. This constitutes over half of all working days lost due to work-related ill health.

The release of HSE’s annual statistics show the impact work-related ill health is having on Great Britain’s economic performance. Specifically, the annual economic cost of work-related injury and new cases of ill health (excluding long-latency illnesses such as cancer) was £18.8 billion in 2019/20.

Mental health challenges in the legal industry

Mental health concerns in the legal industry have increased following major events such as COVID-19 and the subsequent economic downturn. This exacerbated long-standing challenges in law and introduced newer ones. Stigma about mental health still exists in the solicitor profession, resulting in legal professionals often not seeking help when struggling with mental health and well-being challenges. From an insurance perspective, the rising mental health issues in law firms has resulted in an increased number of large claims, often stemming from negligent employee behaviour due to psychological breakdown.

A 2021 Mental Health In the Legal Profession Survey from The Corporate Law Academy worryingly revealed that 93% of respondents experienced issues with their mental health over 2020; with 84% having concerns over their ability to manage the stress of a training contract. 

Multiple factors contribute to the increase of mental health issues and substance abuse in law. The nature of the legal profession and the workplace culture are major drivers, both significantly contributing to the current mental health crisis.

Challenging nature of the legal profession

Very often, the billable work requirements, heavy workloads, and high expectations of legal work can have a negative influence on law professionals’ mental health, as many find it challenging to devote time to activities that promote their well-being. Additionally, the difficult nature of law can negatively impact the challenge of managing workloads and keeping a balanced work schedule. Imposter syndrome is also a common phenomenon in law, both in respect of the work and the professional's social environment.

Competitive workplace culture

Workplace culture in law firms is often characterised by: a lack of leadership support, high-stress conditions, and - especially during an economic downturn – increased job security fear due to the highly competitive law industry. Many legal professionals feel that there is no 'margin for error' in a prestigious law firm and often face the fear of being fired for making mistakes.

Why do law professionals not seek help?

Stigma around mental health issues

Law professionals often hesitate to seek help due to the long-standing stigma around mental health issues. This is worsened by a workplace culture that often views seeking support as a weakness. Open conversations about mental health issues are still stigmatised in the law industry. As such, there are only a few role models who have shared their stories to encourage other professionals to seek help and amplify their voices to promote well-being in law. In fact, according to the 2021 Mental Health in the Legal Profession TCLA Survey, 67% of respondents would not be comfortable discussing their mental health issues with lawyers in their employer firm.

Due to the stigma against seeking help for mental health issues, solicitors may feel that having an open conversation about their struggles could: hurt their career ambitions, jeopardise their ability to pass the character and fitness review tests for bar admission, or see their legal license suspended. As a prestigious profession requiring extensive studies and effort, law professionals face the fear of damaging their relationships with their network, family, and mentors. All of whom have invested time in their career development. Anxious law professionals, possibly feeling trapped in a legal career, could potentially increase their stress when expressing their mental health issues to their employer. Anxiety can stem from paying back their student loan to being able to sustain a successful career in the sector.

Diversity, Equity & Inclusion

Some law firms' corporate agendas may not prioritise Diversity, Equity and Inclusion (DEI) in the workplace. Consequently, employees with mental health concerns might find it overwhelming to share their struggles with senior members or supervisors who repeatedly fail to demonstrate ‘an open culture’ to those from underrepresented communities.

Duty of care and the legal responsibilities of the employer

Under Section 2 of the Health & Safety at Work Act 1974, all employers have the legal responsibility to ensure the health, safety, and welfare at work of their employees. This includes the minimisation of the risk of work-related mental health issues. The Health and Safety Executive (HSE), Britain’s national regulator for workplace Health & Safety, has historically concentrated on physical risks and has been more involved with industries such as: construction, manufacturing, and transport.

Traditionally, law firms have not had any involvement from the HSE. As work is conducted in an office environment, health and safety physical hazards for law firms include: incorrect workstation set-up, poor lighting, poor layout of furniture and equipment, poor housekeeping, electrical hazards, and equipment hazards. We have seen some cases of bullying, harassment, and work-related stress, but these have only been infrequently reported by employees. However, it is likely the law industry may liaise more with the HSE in efforts to combat stress, depression, and anxiety in the workplace; potentially decreasing the resulting employee sick days.  

The HSE has been warning of a growing crisis in stress and poor mental health related to work. HSE’s Chief Executive, Sarah Albon, said: “stress and poor mental health is the number one cause of work-related ill health. The effects of stress, depression, and anxiety can have a significant impact on an employee’s life and on their ability to perform their best at work.” The workplace regulator launched a major campaign last year to remind employers of their responsibilities to their employees’ mental health. This aims to improve mental health in the workplace as the forefront of their 10-year strategy: ‘protecting people and places’. To aid this they have developed new partnerships across industry to help employers support their employees. The HSE is sending a clear message to employers: “make sure you properly assess where you currently stand in terms of the risks and mitigations you have in place about both mental and physical well-being and put in place appropriate action plans tailored to your particular business”. It is only a matter of time before we see enforcement action taken by the HSE in this area.

Historically, the HSE has suffered from inaction coupled with a lack of enforcement. Despite deploying various management standards and various campaigns - such as Working Minds – relating to stress, the HSE have been relatively reluctant to take enforcement action. Understandably, from an evidence-based perspective, it is difficult to investigate multifactorial issues such as mental health.

It is widely recognised that work is a likely factor affecting the state of somebody's mental health. However, there are equally quite disparate and private issues relating to somebody's upbringing, relationships, and family that have influence too.

Improve your employees’ wellbeing

Good mental health enables a workplace to thrive. Transforming workplace culture and structuring organisational policies can positively influence raising awareness around well-being, reducing the stigma around mental health concerns, and creating a mentally healthy workplace. Mental health awareness benefits are becoming more recognised and a rapidly growing number of companies implement mental health-related initiatives in their corporate strategy. Fortunately, we see significant recognition in the legal industry of the challenges the industry faces and a positive attitude towards tackling mental health issues in the workplace.

Marsh Advisory is making excellent progress in the mental health area. Through providing support to law organisations the stigma around mental health is reduced and their employees are encouraged to seek help in an open and supportive work environment.

Introduce positive mental health

When considering how to approach mental health in the workplace and develop a strategy that is reflective of your employees’ needs, it is crucial to have a clear understanding of where your workplace stands in terms of mental health awareness. These are the main well-being challenges in your organisation and contain the potential risks that could emerge and affect your employees. Before embarking on your mental health journey, it can be useful to understand how your current policies and procedures align with best practice guidance - enabling you to build the core foundations to work from.

It is also important to have visibility on how your employees perceive the working environment and culture. As the core and most valuable asset of your legal operations, it is important to build the right strategy to accommodate your workforce’s requirements. Involving your employees in the mental health awareness journey of your organisation is key for successful and long-term strategy integration. Your workforce can provide you with their insights, creating a path towards positive change within the firm. Consequently producing better retention rates, reputation, talent recruitment, and improved employee performance.

Develop your mental health strategy

It is crucial well-being risk management sits at the heart of your organisation, embedded into a strategy and supported by a mental health policy. Mental health in the workplace needs to be championed from the top and filtered down. Starting from enhancing mental health awareness for your board of directors, your leaders can then look after the health and well-being of employees. This will likely translate to happier, more engaged, and more productive employees. However, mental health should not be the sole responsibility of a few individuals. A multi-faceted approach across the business - with the backing of the board - can make all the difference when introducing mental health programmes. Building a tailored framework with quantifiable objectives, lead from the top, will ensure an effective strategy in improving the health and well-being of the workforce.

An organisation must integrate a holistic approach to mental health awareness, driven by both the leadership and all employees. Training can provide valuable support through aiding communication on important aspects of mental health to: the board of directors, line managers, and all employees. As part of Marsh’s Interactive Training Options, face-to-face and online training delivered by mental health experts can be pivotal for an organisation’s path towards positive mental health. Through this inclusive and flexible approach, law firms can choose the ideal training options, based on their business needs, and train:

• Directors on their responsibility to create a culture in the business which encourages people to ask for support and talk openly about their physical and mental health without judgement.
• Managers on building their confidence to interact with someone in distress or who may be experiencing a mental health issue.
• All employees on managing their anxiety and stress, identifying depression signs, being mindful, and developing a self-care strategy.

Introducing licensed Mental Health First Aiders (MHFA) in law firms - integrated as part of a strategic approach to well-being - can also play an important role in reducing the stigma around mental health. The Royal Society for Public Health accredited MHFA programme has proven to be of significant importance across many industry sectors in helping boost employee well-being. This also constitutes the backbone of Marsh’s Mental Health First Aider Course. Through the accreditation, employees are encouraged to talk more freely about mental health, creating a more positive culture. Having Mental Health First Aiders in your organisation can:

• Raise awareness and mental health literacy.
• Reduce stigma around mental health.
• Boost knowledge and confidence in dealing with mental health issues.
• Promote early intervention which enables recovery.
• Bring the ability to spot the signs and symptoms of mental health issues and feel confident guiding people towards support.

Finally, there is no one-size-fits-all mental health strategy. Align your mental health initiatives with what your employees truly need. Analyse your current challenges – what do you need to do to help your workforce? Your mental health awareness journey should be structured, consistent, and supported by all employees approaching mental health issues with empathy and inclusivity.

Marsh is experienced in providing support to clients embarking on their mental health awareness journey. Please contact Lorna Feeney for any additional assistance. 

Safeguarding employee mental health: responsibilities and risks for employers

Author: Louise Singh - Principal Associate at Weightmans LLP

What were you doing on this day three years ago? If you are an employer or HR professional, chances are you spent the spring of 2020 frantically putting plans in place to keep your staff emotionally well and physically safe from harm, as the first wave of COVID-19 took hold.

While those lockdown days now feel like a distant bad dream, the increased focus on employee mental health - sparked by the pandemic - and the blurring of boundaries between work and ‘life’ are here to stay. A paradigm has shifted. More than ever, there is an expectation that employers will pro-actively step-up to protect the mental wellbeing of their staff in the same way as their physical safety.

When dealing with stress and mental health issues in the workplace, there is a complex legal framework within which employers are required to act. If an employer fails to identify and manage mental health issues effectively then this can result in a variety of claims, which are typically expensive and time-consuming to defend; often detrimentally impacting working relationships where the claimant remains an employee.

The duty of care

As a starting point, all employers have a ‘common law’ duty to take reasonable care for the health and safety of their employees. Common law is a body of unwritten law based on legal precedents established by the courts.

This duty, which extends to an employee’s physical and mental health, is personal and cannot be delegated. In other words, an employer cannot ‘pass on’ responsibility for an employee’s mental health to another member of staff, or to an independent contractor or other third party.

A breach of the duty can result in a finding of negligence against the employer and if the employee suffers harm, damages may be payable for personal injury.

Health and safety in statute

Employers also have extensive statutory duties to safeguard employees’ physical and mental health. Some pieces of legislation, such as The Management of Health and Safety at Work Regulations 1999 confer civil liability. While others, such as, the Health and Safety at Work etc. Act 1974 give rise to criminal penalties if breached.

Under the HSWA 1974, employers have a duty to assess risk and manage activities to reduce stress at work and support employee mental health.

In addition, the Health and Safety Executive (HSE) - responsible for promoting better health and safety at work - issues Approved Codes of Practice (ACoPs). ACoPs - which have special legal status - as well as health and safety guidance, which does not have legal force but which, if followed, will normally mean that employers are doing enough to comply with the law.

In practice, employers will need to do the following to fulfil their legal obligations in respect of employee mental health:

• Undertake comprehensive risk assessments to identify potential sources of stress and risks to mental health, especially where an employee has made known that they are struggling;
• Establish safe systems of work, including implementing suitable preventative and protective measures; for example, arrangements for managing workload and keeping communication open with managers.
• Implement (and enforce) those safe systems of work on an ongoing basis. This should include preparing and communicating to staff a written health & safety policy, addressing mental health risks, if you don’t already have one. This should be updated and recommunicated on a regular basis.
• Provide employees with information about any preventative measures being taken and signpost them to sources of support.
• Regularly train staff and maintain records to show that individual employees have been trained, along with details of the training provided.
• Regularly review those measures so as to ensure that they remain fit for purpose.

Employment law liability

Where a mental health or stress-related condition amounts to a disability, as defined under the Equality Act 2010, an employer will need to think about the risk of discrimination. Many areas of working life such as sickness, absence, poor performance, or disciplinary issues may be impacted by the employee’s condition and an employer will have a duty to make ‘reasonable adjustments’ to alleviate any disadvantage suffered by the employee has a result of their disability. There is no ‘one size fits all’ approach to reasonable adjustments, but common accommodations might include a phased return to work after illness; a reduction in working hours; or the re-allocation of certain duties to alleviate an excessive workload.

If an employee is dismissed for a reason relating to their mental health, an employment tribunal may well find termination to be unfair if only cursory wellbeing support was provided by their employer. Indeed, an employee who feels unsupported after making their employee aware of their mental health struggles could choose to resign and claim ‘constructive dismissal’.

Policies are not enough

While having an overall policy framework in place will help ensure fair and consistent treatment of staff, and hopefully prompt managers to action, great policies are not enough when it comes to effective mental health management at work.

Individuals seeking help for a mental health or stress-related problem should ideally receive moral and practical support, tailored to their individual circumstances.

As well as considering an employer’s suite of policies and procedures, a court or tribunal will look at whether there are effective means and resources to supporting any commitments those policies make. Are those commitments reflected in the employer’s practice? Does it apply them meaningfully? Are ‘on the ground’ steps being taken to improve a wok situation that is negatively impacting an employee’s mental health, such as a difficult line-management relationship or a stressful bottleneck of work?

Sources of support

Internal and external sources of mental health support for employees will of course vary according to the size and resources of the organisation. However, internal ‘best practice’ might include: an on-site occupational health department or medical adviser; or workshops and training on work/life balance and positive mental-health management.

Externally, employers might instruct medical specialists and provide employee assistance programmes (EAPs), telephone helplines, and advice clinics.

Useful cost-neutral options might include facilitating mutual support groups (encouraging staff to informally support each other) as well as providing support for managers through human resources.

Again, it is important to note than an employer’s health and safety responsibilities cannot be delegated. So, for example, if an employee is referred for counselling, is it not safe to treat that duty as discharged. It is important to keep an ongoing ‘weather-eye’ on how the employee is doing and check in with them regularly.

Where mental health support arrangements are outsourced, it is a good idea to seek regular feedback about how effective and well-used they are. There is no point paying out for an expensive suite of services, if they are difficult to access, or there are significant gaps in coverage for particular conditions.

Comments and action points

These days, with mental health so high on the social and commercial agenda, employers are under a great deal of pressure to be ‘all-seeing’ and ‘all-knowing’. We know many employers worry about whether they have ‘done enough’ to safeguard employee wellbeing and to protect the organisation’s position if things go wrong. If you have concerns, start with getting the basics right and build outwards.

Make sure your organisation is armed with the basic systems of assessment of risk and safe systems of work, and tailor support to the individual employee’s needs and abilities wherever possible. This combination of systemic and personal approaches will go a long way towards fending off claims or prosecution.

Bear in mind that any pre-Covid policies may need updating to keep pace with a changing work landscape. Make sure that your arrangements cover home working as much as an office/factory environment, given the huge increase in ‘agile’ and ‘hybrid’ working, and that your policies are as much directed to mental health as they are to physical injury. If you are unsure whether your policy framework is fit for purpose, seek legal advice.

Marsh Risk and Error Management Team

We are grateful for both Lorna and Louise’s contributions in this issue of our Risk Dimensions newsletter. We also refer to Issue 6 which covered the Health and Safety Executive and the potential implications for law firms who fail to protect employees from work-related stress: Risk Dimensions Newsletter Issue 6: April 2022.

The topic of mental health in law firms is one which we discuss regularly with clients who are keen to provide a safe working environment and demonstrate risk maturity in this area. In light of this, Marsh Specialty intends to arrange a webinar in due course to discuss these subjects in more depth. If you are interested in attending please contact Victoria Prescott via our contact us form.