Regulating mental health and wellbeing: the current picture

At present, the law is sparse. It is largely based on the general duties under sections 2 and 3 of the Health and Safety at Work etc Act 1974, and the Management of Health and Safety at Work Regulations 1999.

Photograph: iStock

In its 2016–2021 strategy, Helping Great Britain Work Well, HSE identified tacking ill health as one of six strategic objectives. To further that strategy, HSE undertook to review and develop guidance and tools, and to increase engagement and communication to raise awareness, resulting in practical action. Pursuant to that objective HSE has done much in recent years to improve the guidance and tools available to organisations to help them to support the mental health and wellbeing of their workforce. 

Framework of actions

For example, in 2017 the UK Government commissioned a review of mental health and employers. The result of that review was the Stevenson/Farmer Thriving at Work report, which included a framework of actions which employers are recommended to implement. 

In 2021, HSE launched its ‘Working Minds’ campaign, supported by its Talking Toolkit for managers. The very useful materials are regularly updated and support national events like Mental Health Awareness Week.

HSE has also developed the Management Standards approach to help employers manage the causes of work-related stress. These focus on:

• Demands – this includes issues such as workload, work patterns and the work environment
• Control – how much say the person has in the way they do their work
• Support– this includes the encouragement, sponsorship and resources provided by the organisation, line management and colleagues
• Relationships– this includes promoting positive working to avoid conflict and dealing with unacceptable behaviour
• Role– whether people understand their role within the organisation and whether the organisation ensures that they do not have conflicting roles, and
• Change– how organisational change (large or small) is managed and communicated in the organisation.

HSE’s objective to reduce work-related ill health

Having laid that foundation of guidance and support, it might be wondered whether HSE is starting to move towards more enforcement in this area. Reducing work-related ill health with a specific focus on mental health and stress is the first priority identified in HSE’s strategic objectives for 2022–2032. HSE recognises that work-related ill health trends are upwards, with the most commonly reported causes in Great Britain now stress, depression and anxiety.

HSE says in the strategy that “we will work to reduce this trend. Using our collective resource to focus on this problem, we will deliver interventions that make a real difference [emphasis added]”.

There is no detail within the strategy itself as to how this will be achieved. However, further detail can be found within HSE’s annual business plan. It is clear from the 2023/24 business plan that any interventions are focused on physical ill health. When it comes to mental health, the actions for last year continued to be engagement to understand best practice. This is said to support “the development of our interventions in 2024/25 and beyond”.

Similarly, HSE has recently launched the Occupational Stress Consultation and Research (OSCAR) project. The findings of the project will be used to inform policy decisions and create practical guidance for employers. 

Enforcement activity

The 2024/25 annual business plan should be published imminently and it will be interesting to see if HSE intends to take forward any enforcement activity in the coming year, or if the focus will continue to be on developing guidance and raising awareness.

Katherine Metcalfe is a partner at Pinsent Masons law firm. Photograph: Pinsent Masons

At present, there is little evidence of enforcement activity by HSE. HSE’s current enforcement guidance for inspectors states that it will investigate issues of work-related stress only in very limited circumstances. It will not investigate where issues have not been raised with the employer, or where there is other more specific legislation or a more appropriate regulator or other authority. That is understandable considering that HSE has finite resources which must be appropriately targeted.

HSE says it will investigate if it receives “evidence that a number of staff are experiencing work-related stress or stress-related ill health (i.e. that it is not an individual case) and where the Health and Safety at Work etc Act 1974 can be applied”. This is a significant marker that HSE takes its duties in relation to workplace mental health seriously, and expects employers to do the same. 

In light of this guidance, the number of investigations currently ongoing are likely to be small. Nevertheless, employers can expect this to become an increasing area of enforcement activity in years to come and should look to implement HSE’s guidance in order to achieve compliance.

A move towards more enforcement action would be likely to greatly increase the focus of employers on this issue.

Katherine Metcalfe is a partner at Pinsent Masons law firm, specialising in advice on health and safety, fire safety and environmental matters. Contact her at:

pinsentmasons.com/people/katherine-metcalfe