Tackling Mental Health in the Workplace

A poll conducted at Lewis Silkin’s October conference on Mental Health in the Workplace revealed that 89 percent of attendees felt that mental health issues were on the rise in their organisation and a third said that their workplace did not have a mental health strategy or programme in place.

These numbers are not surprising considering the recent local headlines on this critical issue. In Hong Kong, a recent study by Oliver Wyman in partnership with the City Mental Health Alliance Hong Kong revealed that one in three professionals have poor mental health (https://hongkongbusiness.hk/healthcare/news/third-hong-kong-workers-go-t...). Despite the high prevalence of mental health issues, there remains widespread social stigma towards those battling with psychological conditions. This was borne out in the study, which showed that the majority of respondents believed that their employers did not have the resources to support them and over a third said they did not feel comfortable discussing their mental health at work (https://www.scmp.com/lifestyle/health-wellness/article/2168304/mental-he...).

While the focus of the conference was on the law and practical implications for employers on mental health in the workplace, the aim was also to bring people together and to increase the conversations on this important topic in order to help reduce the stigma and taboo that surrounds it.

Increasing Expectations for Employers

The conference examined how different jurisdictions in Asia protect mental health conditions with a lively panel discussion addressing the key issues. The panellists included a range of legal experts from Ius Laboris (https://www.iuslaboris.com/en-gb/) partner firms in Australia, Hong Kong, Thailand, South Korea and China.

While the legal obligations for employers varies across jurisdictions one trend was clear – there is an increasing expectation on companies to support the mental wellbeing of their employees and it will particularly impact jurisdictions and industries where working long-hours is commonplace. With one of the longest working weeks in Asia Pacific, at an average of 44 hours per week, employers in Hong Kong need to be prepared (https://www.statista.com/statistics/666946/asia-pacific-average-working-...).

In Hong Kong, employees have slowly become more vocal, and as one of the panellists pointed out, there is an increasing trend of claims for disability discrimination related to mental illness brought by employees.

Advice for Hong Kong Employers to Minimise the Risk of a Disability Discrimination Claim Related to Mental Illness

In Hong Kong, it is unlawful to treat an employee less favourably because of his/her disability. Disability is widely defined to include any condition that affects a person’s thought processes, perception or reality, emotions or judgment or that results in disturbed behaviour. An exception applies where it will not be unlawful to discriminate against an employee with a disability if he/she is unable to perform the inherent requirements of the job or in order to carry out the inherent requirements of the job, the employee would require adjustments at work which would impose an unjustifiable hardship on the employer.

When an employee has had frequent short-term absences, or has been absent for some time, or is suffering from a problem which is likely to be long term or recurrent, an employer should ascertain whether there is an underlying medical reason for this. Although most sick leave certificates in Hong Kong provide limited information, with an employee’s consent, the employee’s doctor can provide more detailed information to the employer or the employee can be asked to see a company-appointed doctor. The purpose of this is to obtain medical advice on the underlying medical reason for the employee’s absences/issues and to be advised as to what reasonable accommodations should be made in the workplace to assist the employee with their condition. The employer should always try to discuss such accommodations with the employee first before implementing any of them. A court will look at what reasonable accommodations have been made (if any) before an employer can avail itself of the inherent requirements defence.

Proactive Wellbeing Initiatives

Hong Kong businesses are increasingly realising the importance of mental wellbeing initiatives (https://hongkongbusiness.hk/hr-education/in-focus/how-bosses-are-rethink...). Accordingly, the second session of the conference included a new line-up of corporate and medical panellists to discuss the practical implications for employers when creating a ‘best in class’ international wellbeing strategy, how to generate safe and supportive discussions about mental wellbeing in the workplace, and how to measure the success of mental health initiatives.

A key finding from the discussion was that any wellbeing initiative needs to show that it is supported by the leadership team and is a priority across the entire business. Senior leaders need to commit to the strategy and communicate its value, and line managers need training so they can confidently support their team’s health and wellbeing.

Another interesting discussion looked at measuring a wellbeing programme’s success. While this can be considered difficult, it is not impossible with the help of data. Data can be captured from various sources such as retention rates, absence data and the amount of performance management undertaken, as well as the level of insurance claims or the use of employee assistance programmes.

Keeping the conversation going was a reoccurring point throughout the conference. Hopefully in the years ahead, this event will be one of many initiatives in Hong Kong that helps to reduce the stigma around mental health to make the lives of people who are suffering from it better.

Jurisdictions: 

Partner and Head of Lewis Silkin Hong Kong

Legal Director, Lewis Silkin Hong Kong