Responding to a mental health emergency can be challenging for employers and will often require balancing an employee’s safety with their privacy in circumstances which require prompt action. We consider what steps may be appropriate for an employer to take, drawing on the recent guidance from the Information Commissioner’s Office (ICO).

What is a mental health emergency?

Just as with physical illness, employees can become emotionally or psychologically unwell whilst at work. Everybody experiences mental health differently, but an emergency could include an employee feeling suicidal, attempting suicide, self-harming, suffering from an anxiety or panic attack, becoming overwhelmed or feeling unable to cope. The ICO more narrowly defines a mental health emergency as a situation where an employee is at “risk of serious harm to themselves, or others, because of their mental health”.

For both employers and employees, a mental health emergency can arise suddenly. This could be as a response to a specific event in their personal lives, for example, in response to a bereavement or relationship breakdown. It could also be triggered by an event at work such as a redundancy or disciplinary process. For others, an emergency could stem from mental health problems which have built up over time. This could include work-related stress, as a result of perhaps working long hours or significant work pressures or deadlines.

Some employees may have pre-existing conditions that make them particularly vulnerable to a mental health emergency. This could include individuals with depression or anxiety or other physical conditions. Employees may have previously notified their employer about an underlying condition, but they are not obliged to. This can make it challenging for managers to spot mental health problems at an early stage.

What obligations do employers have?

From a legal perspective, the legal obligations towards an employee are much the same as when an employee suffers from a physical illness.

As with physical conditions, a mental health condition can amount to a disability for the purposes of the Equality Act. This will be fact-specific and depend on whether the condition is expected to last 12 months or more and has a substantial impact on an employee’s ability to carry out day to day activities.

If an employee is deemed to satisfy the definition, the employer will need to implement reasonable adjustments (before and/or after any medical emergency). However, this duty only arises if the employer has actual or constructive knowledge of the disability. If an employer was previously unaware of an underlying condition, a mental health emergency is likely to be relevant in determining whether an employer subsequently has constructive knowledge of a condition.

In addition, all employers have a duty to take reasonable care of their employees’ health and safety and provide a safe working environment. This not only includes taking steps to prevent work-related stress and burnout but also stepping in to help an employee manage a mental health problem at work. This also includes protection from bullying at work.

Finally, employers should be mindful that any injury, including a psychiatric illness, as a result of employer negligence may entitle the employee to claim for personal injury in the civil courts. Employer’s liability insurance may cover such claims but damages can be significant.

Aside from their legal responsibilities, many employers will feel a broader moral obligation to support and care for their employees through a mental health emergency.

How should employers respond to a mental health emergency?

If line managers or HR are alerted to a mental health emergency, they will need to quickly consider what next steps are appropriate.

Immediate next steps

How to appropriately respond to a mental health emergency will depend on the circumstances and severity of the situation but employers will normally need to act swiftly. Reasonable steps could include:

• If a manager has spotted cause for concern or another colleague has raised worries, they should reach out to the individual. Have an open, empathetic and sensitive conversation. If managers have any doubt about the severity of the emergency, the CIPD suggest good practice would involve directly asking whether the employee has had suicidal thoughts.

It is important that managers understand their role and boundaries. Managers should listen and be empathetic, but they should not act as a therapist. During these conversations, managers should signpost any internal support available, such as an employee assistance helpline. Managers should also encourage employees to speak to their GP, a health professional or an organisation such as the Samaritans.

Managers should be clear about the confidentiality of what is discussed. This will be a fine balance between wanting an employee to be open and wanting to protect their safety. Managers should reassure an employee that they won’t share any information without good reason, whilst being clear about what information they may need to share and with who. For example, the CIPD urge not to promise to keep a conversation confidential if an employee has confided suicidal thoughts.

• Consider escalating a situation to HR or other senior managers. Managers should treat any health information with a high degree of confidence and, if reasonable, this step should be proactively discussed with the individual in advance.

For example, it may be necessary to inform HR if medical advice is needed, a disciplinary allegation has been made (such as bullying or discrimination) or where there is a safeguarding issue. It may also be necessary to involve other managers if issues of work-stress or workload have been raised.

• Consider if it is necessary to contact any external third parties. For example:
  
  
  • If it is felt that the individual is in immediate danger to themselves, it may be necessary or appropriate to call an ambulance. This may be necessary if the employee is in immediate danger of taking their own life, is having a psychotic episode or has self-harmed.
  • If it is felt that the individual is a danger to others, it may be necessary or appropriate to call the police to contain the situation. For example, if an employee is at the point of attempting suicide by jumping off a building into a street.
  • In less severe circumstances, it may be appropriate to contact the employees’ emergency contact or next of kin. For example, if the employee has had suicidal thoughts (but is not in immediate danger) or has suffered a panic attack. As we discuss further below, this is not always straightforward, and employees should be encouraged to take this step themselves.

We consider the data implications of these steps in further detail below, including what information an employer is able to share.

• If there is a need to explain an employee’s sudden absence to their colleagues or clients, managers must again be mindful of confidentiality obligations and the extent of what needs to be shared. Any information shared should be kept to a minimum.

Longer term actions

Employers will need to consider how to follow up with the employee, similar to if an employee had become physically unwell at work. This would initially include understanding whether any sick leave is needed and ensuring the individual obtains a fit note. Employers should follow any internal sickness absence policy or procedure and ensure there is good communication with the employee.

Upon their return to the workplace, employers should consider how best to support an employee and how to manage any ill-health going forward. Employers may want to have a return-to-work meeting to help identify any possible triggers or forms of support which could be offered. Employers should also consider carrying out stress risk assessments.

Employers should also consider seeking medical advice from occupational health and/or the employee’s GP. This can be helpful to determine if the employee is fit to return to work and whether any reasonable adjustments are needed. Adjustments will need to be specific to each employee and their circumstances. Acas guidance suggests that even simple changes to an employee’s working arrangements can make a difference, such as allowing them more rest breaks or allowing flexible working arrangements.

How should an employer balance privacy and safety?

In addition to the duty of confidentiality, when contacting a third party an employer will need to be mindful of its obligations under the UK General Data Protection Regulation (UK GDPR).

Article 9 of the UK GDPR includes “data concerning health” as a category of special category data. This means that there are greater hurdles for processing this data, as not only do you need an Article 6 basis for processing (e.g. legitimate interests), you also need an additional Article 9 basis.

The most appropriate Article 9 bases for processing are likely:

• Article 9(2)(c), that processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent; or
• 9(2)(b), that processing is necessary for the purposes of carrying out the obligations of the employer in the field of employment (e.g. complying with the obligation to provide a healthy and safe workplace).

Contacting emergency services or health professionals

The ICO recently released guidance on what to do during a mental health emergency – although the concepts described in this guidance are also more broadly applicable. The guidance states that, during an urgent or emergency situation, employers should share necessary and proportionate information to the appropriate emergency services or health professionals. This will usually be limited to a basic description of what has happened in order that those services can provide the necessary assistance.

Even if an employer divulges more information than is strictly necessary, the practical risk will be low in most scenarios. For example, if an employer is asked by a paramedic to provide information, the likelihood is that they are asking because that information is necessary to help the employee. If the employer divulges information unasked for, the risk (albeit a low risk) is that the employee then complains to the ICO – assuming the employer believed they were acting in the employee’s best interests, the risk of the ICO then taking any material action in those circumstances is also low (given the nature of the breach).

Contacting next of kin

Whether or not next of kin or family should also be informed about what is happening is less straightforward. While the instinct might be to inform the emergency contact, you will not always know the nature of the relationship, and it could be that informing certain people could make the situation worse.

The ICO therefore suggests that, if a colleague is putting themselves at serious harm in the workplace, the emergency services can be given the full details of the incident, but then the next of kin can be handed the details of the relevant emergency services who can then determine what should be communicated to that person. It may not be appropriate for the next of kin to have all of the details of what is happening.

If information were divulged to a next of kin, the likelihood is that would also be low risk if the relationship between the employee and the next of kin was one where the next of kin would be helpful in the circumstances. The risk is that somebody is having a mental health emergency because of, for example, abuse they are suffering at the hands of their partner, and that partner is then given all of the details. It is this type of situation that the ICO hopes to avoid. HR functions should always therefore consider who it is necessary to inform about events in order to give the employee the help that they need.

How can employers plan ahead?

Employers should seek to be proactive in preventing mental health emergencies at work. Building a culture where mental health can be openly discussed will be key. This may not be quickly achieved but there are a number of practical steps employers can take to ensure they are supporting their employees as well as possible. These include:

• Policies: ensuring there are policies in place to support employees, managers and HR. This could include:
  
  
  • A mental health policy which sets out your values and emphasises your commitment to mental wellbeing. It should also signpost any internal and external support available. It is also sensible to set out when confidentiality will be maintained and in what circumstances information will be shared with others.
  • A policy on sharing personal information in a mental health emergency, setting out the types of information you may need to shared, who you share it with, and how.
  • A data protection impact assessment which includes information on processing information in this context as part of your general processes on the everyday handling of your workers’ health information

• Mental health first aiders: as with physical illness, having a small group of employees in your workforce who are specifically trained to recognise and assist people with mental health issues in the workplace can be an additional source of support for employees, and help reduce any emergencies arising.
• Next of kin: Ensure next of kin or emergency contact details are kept up to date and regularly reviewed. HR should have a good understanding of when these can be used and the ways they are used should be clearly communicated to your workforce.
• Training: Training for employees, managers and HR on how to recognise when an employee is struggling with their mental health, how to respond and what information they are able to share.
• Wellbeing initiatives: wellbeing is increasingly seen as an important strand of DEI strategy and both the CIPD and Acas recommend having a wellness action plan in place.

It is becoming more commonplace for employers to offer “mental health days” or “wellbeing days” to be used as and when needed. We have discussed some possible wellbeing support in previous years. Working with employees on an ongoing basis to help them manage stress and build resilience can all contribute towards helping employees manage their mental health.

This year’s Mental Health Awareness Campaign focuses on movement. Encouraging employees to take a break from their desks, providing standing desks to all and offering regular lunch-time yoga classes or group walks can help employees prioritise their mental health.

• Support for all: employers should ensure there is support in place for managers or other colleagues who have been impacted by another individual’s mental health emergency. Both witnessing or supporting somebody through a mental health problem or emergency can take its toll.

Mental health awareness week is a good prompt for employers to review their procedures and practices to ensure they are well equipped to respond to any mental health emergency.

Further detail about the mental health awareness training Lewis Silkin can offer can be found here.

The ICO’s guidance on information sharing in mental health emergencies can be accessed here. Acas guidance on supporting mental health at work and reasonable adjustments for mental health can be accessed here and here. CIPD guidance for people professionals on responding to suicide risk in the workplace can be accessed here.