Don't worry, be happy: the changing emphasis on health and wellbeing in the workplace

Published on 29th Sep 2016

Corporate health and wellbeing programmes are very ‘of the moment’. No longer just for the disruptive, forward-thinking US tech businesses: organisations of all sizes and in all sectors are starting to place real value on programmes which encourage employees to eat healthily, get moving and look after their mind.

What is the business benefit to focusing on good employee health and wellbeing?

Some may approach wellbeing initiatives with scepticism and see them as marketing ploys, but there is good business evidence to support the benefits of such programmes. In 2014/15, 1.2 million people in the UK suffered from work-related ill health. Statistics from the year before showed that this was costing the UK (and employers) over £14 billion. Mental health and the risk of stress affected 35% of that number and comparing the figures for the whole of the UK (not just on workers) indicates that by going to work each day, there is a 10% greater risk of an individual suffering from a stress-related illness.

By focusing on the issue, businesses can:

  • improve lost time days and reduce sick pay/overtime claimed;
  • reduce spend on legal claims for injuries/disability discrimination;
  • avoid recruitment costs by retaining talent.
  • in addition to reducing these direct costs, research points to business benefits through improvement in staff morale, business image, the ability to attract talent and productivity within the workforce.

The employer’s legal duties to ensure worker health, including wellbeing

In addition to the economic drivers, there is a legal duty for employers to take care of employees’ health, so far as reasonably practicable.

Law commonly considered when looking at safety risks (in particular sections 2 and 3 of the Health and Safety at Work etc. Act 1974 and regulations enabled by the Act) has equal resonance in the health and wellbeing arena and helps inform the standards below which the business could be deemed negligent in a civil personal injury claim.

The consideration of employee health and wellbeing also falls into the employment law arena. Protections under the Equality Act 2010 for disability protect a range of individuals against unlawful discrimination and consideration may need to be given as to whether work-related ill health could be classified in some scenarios as a disability under the Act. Regulations governing working hours including the Working Times Regulations 1998 will equally play a role when considering management of stress risks and mental health and wellbeing.

What does ‘good’ look like?

Aside from the specific legal requirements about physical health and wellbeing set out in various regulations (eyesight risk from screens, hearing loss from noise etc.), the legal standard around the employer’s duty in the health and wellbeing arena is still broad and largely undefined.

The employer has to take ‘all reasonably practicable steps’ to ensure health, but, as in the safety arena, for criticism to be made against an employer, the first step for a regulatory authority or claimant in civil proceedings would have to be to demonstrate that the risk was foreseeable and in some way connected to the workplace or its activities.

Approved Code of Practice documents and other guidance (such as material published on the website of the charity “Mind” about how mental health risks can be identified and managed) will assist businesses to determine what ‘good looks like’ in the health and wellbeing arena. However, it is not a simple task.

For businesses to demonstrate compliance with the law:

  • there should be evidence that health and wellbeing risks have been considered and assessed (through written risk assessment and policy documentation required under the Management of Health and Safety at Work Regulations 1999);
  • steps should be taken to reduce and control risks to health and wellbeing – which is where the corporate health and wellbeing programme plays a key role in legal compliance;
  • a clear process should be in place to keep risk under review and assess whether steps put in place are working; and
  • action should be taken, where needed, to develop preventative measures.

Where is the law going?

The law already enables action to be taken by regulatory authorities or individual claimants in the event that a business fails to properly manage health and wellbeing risks in the workplace. Whilst in some areas (such as stress risk) it is notoriously difficult for an individual claimant to bring a claim for personal injury because of the challenges in proving causation in negligence, the issue of health and wellbeing (and the cost to the UK) are firmly on the government agenda, and the Health and Executive have identified the need to inspect businesses around how they are focusing on health risks in their 2016/17 business plan.

We anticipate a greater focus by regulatory authorities (including the HSE) in this arena as well as keen interest from investors, trade unions and employees themselves. Where the issue is costing the UK (and the NHS) money, it seems likely that employers are increasingly likely to be encouraged to play a role in decreasing risk and illness.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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