Often overlooked and far more nebulous than its counterpart, work related ill health affected 1.8 million workers in 2022/23 and almost half of those cases can be attributed to stress, depression or anxiety. By its own admission, the Health and Safety Executive has made great strides in occupational safety, leaving the health element of their remit somewhat under examined, particularly in relation to bringing prosecutions.
The HSE makes clear in its 2022 – 2032 Strategy that one of its primary objectives for the next decade is to reduce work related ill health, with a specific focus on mental health. Those attending the annual Health and Safety Lawyers Association conference this May heard an honest summary of the HSE’s position when considering the issue from Rick Brunt who spoke with candour about the challenges the HSE faces in attempting to engender change, both prosecutorial and behavioural.
Mental health and the employer’s duty now
Health and safety statistics published by the HSE show that 875,000 workers are suffering from work-related stress, depression or anxiety in 2023/23. In the same year, 17.1 million working days were lost to the same cause.
Figures show that this number is on the rise and that the current rate of self-reported work-related stress, depression or anxiety is higher than pre pandemic levels.
Whilst the employer’s duty to provide a safe working environment for employees does extend to a duty to address workplace stressors such as bullying or harassment, at the time of writing, there is no legal precedent for criminal proceedings being brought in relation to work related mental illness or suicide. This position seems to be behind other countries and the HSE are very much alive to that fact.
Recognising that employers should do all they can to prevent work related stress and support good mental health, if not for through moral obligation then at least because of its direct correlation with the bottom line, the HSE created the Working Minds Campaign in 2021. The programme collates a number of free tools and support to help businesses and workers understand the best ways to identify and respond to poor mental health in employees.
The obvious limitation of such a campaign however is that it requires a proactive approach on the part of the employer. The reality surely is that the businesses who are minded to initiate campaigns such as Working Minds are likely already alive to the issues surrounding workplace mental health. For the remainder, given recent political uncertainty, a flailing economy and the myriad of other regulatory business challenges, it seems naïve to expect the average employer to place this topic high on their list of priorities without some form of notable significant event to trigger it.
“Work- related suicide”: how big is the problem?
The highly reported case of Ruth Perry, a Primary School Headteacher who tragically took her own life in January 2023 will likely be such a triggering event for long term legislative reform, with even greater collaboration between the HSE and Chief Coroner anticipated. In fact, with eerie foresight, in 2022, the HSE commissioned the Workplace Health Committee (‘WHEC’) to write reports into both work-related ill health and disease and work-related suicide.
Some jurisdictions; Japan, the US and France – formally recognise a category of work-related suicide; this is not so in the UK where currently, we have no systematic methods of collating employee suicides. For this reason, WHEC has advised that the HSE obtains a reliable estimate of the frequency of suicides to which the contribution made by work have been or could have been material.
In its report, the WHEC considered the ways in which work or job factors might play a role in work related suicide risk and found that:
Work-related stressors such as job insecurity, low pay, bullying, high demands, low control, lack of support, negative relationships, poorly defined roles, or uncertainty due to change are all factors that could influence tendency towards ending one’s own life.
Furthermore, work or job circumstances might generate feelings of defeat, humiliation and entrapment – for example, being humiliated due to being bullied or rejected at work, and feeling trapped in that job because of (perceived) lack of possibilities to find a job in another organisation, particularly in situations where the income is essential to support dependents, pay bills etc.
The report states that “psychosocial job stressors such as high job demands with low decision latitude and high efforts but low rewards, have been widely associated with intermediaries of suicide such as depression.”
The WHEC report also considered whether an individual’s death by suicide can be attributed to their occupation. In doing so, they considered the French and American systems and found that in both, suicide is automatically considered to be work-related where it occurred in the place of work and/or where there was circumstantial evidence of a link to work for example a note describing work stress or evidence from family/friends citing work related ill health. The burden of proof is then on the employer to prove that that suicide is not work-related.
The upshot of this seems to be that in France, 20% of suicides in working age adults are deemed to be work-related.
What next for the UK?
The UK currently does not recognise ‘workplace suicide’ and under RIDDOR guidance, suicides are not reportable. However, the case of Corr v IBC Vehicles Ltd is precedent that an employer can be held responsible for a suicide arising as a result of a workplace accident.
On the topic, WHEC advises the HSE that “injuries incurred at work are associated with incidence of depression and may increase the risk of suicide.”
The tragedy of Ruth Perry highlights a lacuna in Health and Safety Law in England that once drawn to one’s attention seems blindingly obvious. The last decade has seen mental health and issues surrounding suicide brought to the forefront of discussions but insofar as mental health and suicide and their entanglement with workplace health go, the dots have remained unconnected, but probably not for much longer. We expect to see slow incremental change in the HSE’s approach and would not be surprised if prosecutions were considered where there is evidence of a number of staff suffering from poor mental health coupled with organisational failure to address such issues.
To find out more on this topic or any Health and Safety matter, please contact Francesca Reason or any member of the Regulatory and Corporate Defence Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2024.