Mental health and the law: Coping strategies

A surge in conditions including stress, anxiety and depression led to Britons taking a record 20.5m days off work last year for mental health reasons. In 2023, the figure was 14.8m. Latest figures from the Office for National Statistics show that this accounted for 13.7% of all sick days, the highest proportion since 2019. Mental health conditions were the fourth most common reason for sickness absence in 2024. 

The rise coincides with an increase in the diagnosis of mental health conditions, such as anxiety and attention-deficit or hyperactivity disorder. It has also fed into an observed increase in employment law claims, though no reliably comprehensive figures exist here. 

Experts partly attribute the rise to a greater awareness of mental health conditions and reduced stigma, making people more willing to be honest with their employer about the issues they face. 

Poor practice 

Many workplaces have set out to improve the way they respond to employee mental health issues, promoting wellbeing initiatives, offering support and addressing factors that can negatively affect mental health. 

But lawyers who act for claimants suggest that poor practice remains widespread, culminating in employees being sidelined, discriminated against or unfairly dismissed. 

'Whether it is direct allegations of disability discrimination or more widely, claims of unfair or constructive dismissal… I am seeing more and more claims of this nature'

Bryn Doyle, Lewis Silkin

Katherine Cooke, a senior associate at Higgs in the West Midlands, notes that it is difficult to statistically assess the scale of poor practice and management of mental health issues. One reason for this is because employment tribunals do not provide data on the number of claims related to mental health issues. 

However, she observes that last year the Advisory, Conciliation and Arbitration Service concluded that there has been an increase in disability discrimination claims brought at tribunal. Mental health conditions – defined as anxiety, depression, post-traumatic stress disorder and psychosis – were one of the four main types of disability discrimination claim. 

Lewis Silkin partner Bryn Doyle says: ‘Whether it is direct allegations of disability discrimination or, more widely, claims of unfair or constructive dismissal, including through bullying or harassment that highlights the impact on an employee’s mental health, I am seeing more and more claims of this nature.’

Philip Cameron, a partner at Littler –formerly GQ Littler – suggests that the rise in claims may be related to the increase in awareness and diagnosis of neurodivergent conditions. He rejects the idea that employers cynically promote mental health awareness initiatives without regard to their own poor practice. Rather, he suggests: ‘It is often not easy for an employer to understand what steps they should take to support an individual suffering from poor mental health, and people with similar conditions may have very different needs.’ 

'We do not recommend litigation unless the loss is so devastating as to mean career-ending, which is likely the only time that process can be justified'

Karen Jackson, didlaw

Even if tribunals did have data on claims, this would not provide a full picture. Karen Jackson, chief executive of didlaw and a disability discrimination solicitor specialising in mental health at work, notes that the majority of work-related disputes settle before reaching the first stage of the process.

‘At didlaw,’ she adds, ‘we do not recommend litigation unless the loss is so devastating as to mean career-ending, which is likely the only time that process can be justified.’

Such claims, adds Doyle, can be difficult to litigate for both sides, because of the need to consider the impact on the claimant and avoid exacerbating any conditions. But, he says: ‘Acting for the employer, we have to be able to properly challenge the evidence, and so treading the line between the two can be tricky.’ 

Doyle agrees that claims with a mental health element are more likely to settle than others, in part because of the cost of defending them, including the need to engage medical experts.

Moreover, he adds that obtaining a ‘fair and balanced’ medical report can be difficult because, unlike purely physical disabilities, mental health-related conditions tend to be harder for lawyers and tribunals to interpret.

Health, safety and injury

Cases in relation to mental health issues and the workplace, explains Shantha David, head of legal services at the union Unison, tend to be brought in the context of personal injuries, either as a result of common law negligence or discrimination. The starting point, she says, is to consider the rights and duties of employers in relation to workplace stress. 

Claims can be brought under health and safety legislation, such as the Health and Safety at Work Act 1974. This requires that employers ensure, as far as reasonably practicable, the mental and physical health, safety and welfare of employees at work.

The Management of Health and Safety at Work Regulations 1999 place a duty on employers to conduct ‘suitable and sufficient’ risk assessments for health and safety, which includes mental health risks.

A failure to restrict working hours, David says, may also give rise to a claim under the Working Time Regulations. An employee suffering from stress may also have a claim for breach of contract, arguing that it is the result of their employer’s breach of an express or implied term of the employment contract. 

In addition, says David, an employee who has been signed off sick with stress and who is dismissed may be able to bring a claim for unfair dismissal under the Employment Rights Act 1996. 

Anxiety and depression, resulting from work-related stress, may mean that an employee has a mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, says David, making them ‘disabled’ for the purposes of the Equality Act 2010 and so protected from disability discrimination and harassment.

Alternatively, she suggests that employees suffering from work-related stress may consider bringing a claim under the Protection from Harassment Act 1997, which prohibits anyone from pursuing a ‘course of conduct which amounts to harassment’ and which that person knows or ought to know amounts to harassment.

For an employee suffering from work-related stress to succeed in a personal injury claim, David explains, they will need to be able to establish: a breach of the duty of care by the employer’s acts or omissions; that, as a reasonably foreseeable consequence of that breach, they have suffered psychiatric or physical injury; and that the injury they have suffered was caused by the breach.

New legislation

The Employment Rights Bill, published last October, sets out the government’s plans to reshape the landscape of employment law to improve the rights of workers and employees. There are no significant changes in the bill with respect to disability, but there are enhanced protections for employees in all areas.

Among the reforms is a proposal to introduce day-one protection for workers against unfair dismissal, instead of the current two-year qualifying period. However, staff would be subject to a nine-month probation period, during which employers could dismiss them without going through the full process normally required. 

This measure was expected to be implemented in 2026, but following concerns raised by businesses, it has been delayed until 2027, confirms a new timeline for the bill published this month.

How the law deals with mental health claims could be improved, acknowledges Doyle, but he shares the concerns of businesses about the likely cost to them of the proposals in the bill, currently being considered by the House of Lords.

‘It was always going to be a very tough ask for the government to pass legislation that improved the working lives of millions of workers but doing so with minimal impact upon their employers,’ Doyle says. He adds that there is a ‘real danger’ that by making the changes proposed in updated versions, the impact of the changes will be diluted.

‘My worry,’ he says, ‘is that by promising a raft of changes which would have had a positive impact on employees’ mental health and then softening those, it could have the opposite impact of what the bill was trying to achieve in the first place.’  

Close to home – law

In high-stress professions such as the law, where there is a culture of working long hours and burnout is a danger, mental health issues are anecdotally prevalent. Yet there is still a reluctance to bring such problems into the open.

A 2020 survey by the International Bar Association’s task force on mental wellbeing in the legal profession, which received 3,256 individual responses and 186 responses from institutions, showed that over a third of legal professionals felt work negatively affected their mental wellbeing. 

Nearly half of all legal professionals surveyed indicated that they would not discuss mental wellbeing concerns with their employer for fear that it may hurt their career.

The survey confirmed that firms and organisations are increasingly acknowledging the importance of mental wellbeing. Over three-quarters of firms and organisations indicated that they prioritised mental wellbeing, and most stated that they had implemented measures to support mental wellbeing at work.

The increase in lawyers reporting concerns appears inexorable. This month’s Big Report from the Solicitors’ Charity revealed a 178% rise in solicitors seeking help with emotional wellbeing.  

There is the business to consider, too.  Exhausted and burnt-out staff are costing law firms across the UK millions, according to research from wellbeing consultancy Authentically Speaking, founded by lawyer and coach Hannah Beko. She suggests that staff attrition costs an average small-to-medium-sized firm £315,000 a year – or £36,000 for each leaver – with the annual costs for larger firms exceeding £1m.

Says Beko: ‘This is more than just a financial issue, it’s killing people… I speak to people every day for whom stress has derailed their careers, torn apart their relationships and led to long periods of severe ill-health. 

‘I had what many would consider a successful life – partnership at an international firm, a dream home and an amazing family – but I was burning out.’

While Beko welcomes the fact that firms are taking wellbeing seriously, she cautions: ‘Prescribing employees who are already overloaded a strict diet of meditation, office yoga and daily exercise can end up just piling more on their plate. I’ve spoken to many who feel like wellbeing is just another thing for them to juggle, creating a cycle of fear, failure and self-doubt.’

Jackson of didlaw has acted for many law firm employees over 17 years practising in this field. She says: ‘Mental health problems to some extent go with the territory of the legal profession. It can be a demanding job, both in terms of intellectual output and also the long-hours culture, together with the inherent pressures of the work, especially if that involves client management.’

While Jackson perceives a greater willingness to talk openly about mental health issues and neurodivergence, she suggests that employer attitudes are not always positive, and transparency does not always convert to better practice. However, she accepts: ‘I am a litigator, so I only see things when they go wrong’.

Jackson reports a ‘tendency in some firms to entertain the extremely mentally damaging practice of pushing someone to leave by alienating them, undermining them, excluding them, micromanaging.’ She has seen this even in ‘top’ firms.

‘They seem to prefer to try to mentally destroy a person rather than try to seek a resolution through communication or mediation, which might spare [their] mental health,’ she says. ‘We have seen our fair share of lawyers and other people working in the legal profession whose mental health has been destroyed to the point of never being able to work again through pernicious practices which, at their heart, seek to make the person feel like they are actually going insane. It’s terrible to witness. 

‘Saying you support your people and actually providing that support are poles apart. It’s why organisations like LawCare are run off their feet with calls from distressed, burnt-out lawyers.’

An enduring problem in the law, she adds, is the ‘perception that if you have a mental breakdown it means you cannot take the heat and the imperative is often to drive you out’.

Lewis Silkin’s Doyle, meanwhile, reports that his experience of working in law firms has been positive, as increasing numbers have dedicated schemes to address mental health in the workplace. For example, his own firm offers support to all staff, including non-fee-earners.

His perception is that law firms do, on the whole, recognise the need to ensure their staff are safe. Again, there is a business imperative here: ‘Being a lawyer can be a stressful and high-pressure job but, as commercial enterprises, law firms also recognise that if an employee is off sick, then they are not doing chargeable work. So minimising the number of sick days is an important part of any business’s commercial strategy.’

Catherine Baksi is a freelance journalist