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The global HR strategist, chapter one: Global workforce mental health protection

  • Global
  • Employment law

19-05-2021

One of the many unexpected results of the global pandemic was the speed at which organizations and their workforces were able to adjust to the new working landscape. Although the protection of physical health was often at the forefront of plans as businesses moved to shore up arrangements to continue operating, an increased awareness and focus on the protection of workforce psychological health and safety has been another unforeseen outcome.

The pressures created by the new working arrangements precipitated that focus on mental health and added further impetus to the need for organizations to have an effective approach. Moreover, media coverage of the mental health impact of the pandemic created an expectation on organisations to have a strategy on worker protection.

In this briefing, we consider the regulation of employee mental health protection around the world and consider how workforce strategies should take account of such regulation. Further, we focus on some of the benefits to be gained from a mentally-healthy workforce and how HR strategists can work to maximise effectiveness of mental health protection measures in the global workplace and minimize risk. In separate materials on this topic, we will focus on specific jurisdictions (for example, see our briefing Permanent remote working? Addressing mental health challenges in the UK).

Workplace mental health: the financial cost

The World Economic Forum has estimated that the global impact of mental health in terms of lost economic output could amount to “$16.3 trillion by 2030”. Diminished productivity, absence, workplace accidents and higher turnover of staff are just some of the adverse impacts influencing this estimate, with the global cost of sickness absence estimated at “about 2.5% of GDP”.

However, attending work despite mental or physical health problems, or presenteeism, is also a factor. Although often previously associated with high-intensity organisations where the workplace culture does not readily tolerate absence, the rise in remote working has seen presenteeism seep into many more organisations. Further, the impact of individual employee mental health on the wider workforce has also demonstrated the potential to influence not only productivity but also team morale and dynamics.

Evidence, however, also shows that addressing mental health in the workplace can be effective, both on a cost basis and in terms of outcome. For example, according to  the World Health Organisation, “$1 of investment in treatment for depression and anxiety leads to a return of $4 in better health and ability to work”. With the benefit of such cost/benefit data and particularly as the impact on business productivity of mental health in the workplace becomes progressively evident, businesses will find it increasingly difficult to justify failing to take action.

Employer legal duty for mental health protection?

There is therefore a clear business case for addressing mental health within the workplace, but if that in itself is not enough justification for a business to take action, what about any legal obligation to do so?

For multinational employers, considering potential legal obligations has the added complexity of different laws and practices arising from the patchwork of legal regulation around the world. In many jurisdictions, protecting workforce mental health is dealt with opaquely through more general health and safety legislation or indirectly through laws regulating issues that can have an impact, such as working hours or discrimination.

Other jurisdictions have specific legal protection or guidance to protect workers’ mental health. Many of those jurisdictions impose an express obligation to include analysis of psychological impact in health and safety risk assessments. Some also include additional specific obligations to take certain measures. For example in Austria where employers are under a duty to risk-assess for stress and act upon the findings, including retaining occupational psychologists where an evaluation shows that psychological risks exist. In Germany, employers have a legal duty to appoint a company doctor to support them in the protection of occupational health, including advising on occupational psychology.

Recognizing some of the unique mental health challenges faced by homeworkers, some jurisdictions have gone further still and brought in legal protection or guidance specifically to protect homeworkers. For example, in Slovakia where employees performing domestic work/telework must be allowed to enter the workplace in order to prevent isolation and ensure their equal treatment. In Italy, employers are required to provide homeworkers with an INAIL (National Authority for Insurance against Accidents at Work) health and safety notice on remote working. In Spain, employers must ensure that workers do not suffer any detriment or negative consequences as a result of remote working and must allow them to retain the right to disconnect outside of working hours.

Whether specific legislation protecting mental health or protection through more general health and safety obligations, liability and avenues for action related to worker mental health vary around the world, from investigations and enforcement action by regulatory bodies to court litigation, with the potential for civil and/or criminal sanctions. For example, a recent case in Belgium where a criminal sanction was imposed on an employer where employees filed a request for a psycho-social intervention and the employer failed to act.

View mental health protection enforcement routes – sample at-a-glance comparisons

One of the effects of the increased awareness and focus on workforce psychological health and safety has been a rise in workers raising internal concerns where they believe that their employer’s actions or failures have impacted their mental health. In some jurisdictions, workers may gain protection against dismissal or detriment if concerns raised amount to whistleblowing, and/or they may have the right to resign and seek legal redress through a claim based on unfair (constructive) termination. Such increased awareness comes with a corresponding increased risk of enforcement action and litigation, with the potential to impact on costs and management time and to damage reputation.

Working hours regulation

With large numbers of employees working remotely or under hybrid arrangements as a result of the pandemic, employers often now have less visibility of employees’ working hours. At the same time, there is evidence that the blurring of lines between home life and work has resulted in increased hours and further precipitated the “always on” culture around the world, with negative impact on worker mental health. For example, a report in 2020 by Eurofound highlighted research demonstrating that workers in Europe who work regularly from home are more than twice as likely to surpass the maximum of 48 working hours per week, compared to those working on their employer’s premises.

The pandemic has resulted in additional focus globally on measures to ensure the regulation of excessive hours of work, although the difficult balance between protecting workers, allowing workers flexibility and autonomy and the needs of the business, particularly where increasingly customers expect a prompt service, has often in the past been the factor holding many jurisdictions back in implementing legislation.

Particularly as the evidence continues to build of the mental health impact of new working arrangements, a number of jurisdictions have started to introduce or are proposing to introduce more robust measures on working time. Such legislative progress is currently inconsistent across Europe. However, to ensure a uniform base-line of approach, MEPs have recently called on the EU Commission to propose a law that gives a right to those who work digitally to disconnect outside their working hours, establish minimum requirements for remote working and clarify working conditions, hours and rest periods.

View hours regulation and the right to disconnect – sample at-a-glance comparisons

Strategy considerations for mental health protection at work

Effective enquiry, both in terms of the legal position in the jurisdictions of operation and the practical and cultural mental health challenges within the particular organization, will be the key initial step in designing and developing any global strategy for tackling mental health at work. Further, considering what measures are already in place and assessing how successful have they been, both globally and locally.

In terms of the legal enquiry, consideration will need to be given to the underlying legal obligations on workforce mental health protection, but also to the legal position on implementing measures. In some jurisdictions, measures impacting health and safety will require information, consultation and, in some cases, co-determination processes, which will impact both the method of implementation of measures and the timing. Therefore, it will be key to establish early in the planning stage whether any works council, recognized trade union or other employee representative body exists at any site in which new or adjusted measures are proposed and any consequent consultation requirements.

There may also be data protection considerations. The most effective measures will often come from an informed starting point, which can only be achieved from data about the mental health of workers within the organisation. Unless truly anonymous, such data may be subject to data privacy laws, which will determine whether and, if so, how the data can be gathered, processed and stored.

Strategies may also look beyond the issue of mitigating mental health issues arising from the workplace to subsidiary strategic considerations, such as managing absences arising from mental health, ensuring effective mechanisms for raising concerns and addressing potential discrimination risks. Such wider considerations can often be the difference between a strategy that transiently addresses issues and one that becomes part of an organization’s long-term culture and effectively reduces risk.

For multinational employers, taking account of the cultural environment will also be key to maximizing the effectiveness of mental health protection measures in the global workplace. Due to such cultural considerations, workforces in some countries may be more receptive to mental health protection measures than others, meaning that a uniform strategy across all jurisdictions may not be appropriate. Again, effective enquiry at the outset and the ability to flex approach based on ongoing evaluation of effectiveness will be vital.

Those organizations that have successfully demonstrated effective global strategies on tackling workplace mental health protection have done so through a package of measures, tailored depending on the nature of the organisation and its existing culture. In many cases, a “two-tent” approach of reactionary measures, such as the provision of employee assistance and medical benefits, and preventative measures, such as monitoring working practices and hours of work and training, have been combined with a focus on ensuring the organization’s culture minimizes harm.

Whatever the approach adopted, a consistent element in strategies demonstrated to be the most effective is the importance of senior leadership involvement in being effective role models and influencing the drivers of behaviour that can reduce the potential for harm.

Practical checklist and summary: Global workforce mental health protection strategy

Tackling mental health within the workplace is undoubtably a formidable task, especially for multinational employers, with a number of practical and legal considerations. However, with the clear business case for doing so and the potential for risk factors related to mental health to be modified by effective action, addressing the issue can make a significant strategic impact. Moreover, effectively tackling workplace mental health has the potential to be one of the positive legacies of the pandemic for organizations.

Practical checklist for global employers to maximise effectiveness of global mental health strategy and reduce legal risk

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Global enquiry and analysis -  understand the legal position in relation to workforce mental health protection in all jurisdictions of operation, any information and consultation obligations, and undertake audits (adhering to any data privacy requirements) to analyse local and global practical mental health challenges and the effectiveness of existing measures

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Global and local planning -  planning should include a well-constructed communications plan, with associated supporting materials to help managers steer through the process. A consolidated and coordinated global strategy should be devised, with scope for plans to be flexed where necessary

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Local consultation – in those jurisdictions where required, ensure that sufficient time and resources are allocated to ensure effective consultation

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Global and local implementation -  Follow a detailed project plan per country and agree protocols for any consultation. In the long-term, continue to evaluate and reassess the effectiveness of measures

 

 

 

 

 

 

 

 

 

 

 

 

 

Our extensive global footprint means that we are well placed to support global employers in their current and future HR plans, wherever they have a presence. Our lawyers are not only experts in the complexities of different laws, but also in the management of projects spanning jurisdictions and driving those projects to maximise the strategic aims and benefits. Please contact any of our global team should you require advice or assistance.