HONG KONG SAFETY SNAPSHOTS: MANAGING EMPLOYEE MENTAL HEALTH

For some time, we've seen a gradual increase in employee mental health issues in the workplace and the events of last year have accelerated this. A survey conducted by the Mental Health Association of Hong Kong together with Tung Wah College released in June 2021 found that over 60% of Hong Kong employees interviewed, suffered from burn-out symptoms. As we grind on through another year of uncertainty and anxiety, mental health issues will continue to be a challenge for employers.

Introduction

The World Health Organisation (the "WHO") estimates that depression and anxiety disorders cost the global economy approximately US$1 trillion each year in lost productivity. Despite the high economic costs, mental health issues remain in the shadows, in part due to lack of resources and ongoing stigma around mental health conditions. This Safety Snapshot discusses the legal framework associated with workplace mental health in Hong Kong and provides practical guidelines for employers in managing employee mental health.

Can employer's be liable for employee mental health?

Employee Compensation

Under Hong Kong's employee compensation framework, employees suffering from mental illness face hurdles in recovering compensations from their employers. Mental or psychiatric illness is not an occupational disease under the Employees Compensation Ordinance. Also, it will not generally be an “injury by accident” arising out of employment, which excludes a “continuous process” that triggers an injury.

Health and Safety

However, employers may still be liable in negligence or for breach of the Occupational Safety and Health Ordinance. Employers have the duty to provide a safe system and place of work to employees. But psychiatric injury suffered by workers due to work stress or harassment has not been the subject of claims by workers in Hong Kong.

This may change, judging by the increase in such actions elsewhere and the increasing incidence of which we see it being raised within the organisations of our clients. In the event of such claims, the Hong Kong courts will likely follow the English authority of Barber v Somerset County Council [2004] UKHL 13, which related to a teacher who worked long hours in difficult conditions resulting in stress and causing a mental disorder. In that case, the Court held that the overall test in assessing whether the employer’s duty was in breach was that of the reasonable and prudent employer, taking positive steps for the safety of his employees in light of what he knew or ought to have known. The Court ruled that, in view of its knowledge of the plaintiff’s condition, the employer ought to have taken the initiative in inquiring about the plaintiff’s problems and attempting to ease them. The key issue was about foreseeability. On this, the Court said:

• An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
• The test on foreseeability is the same whatever the employment, and there are no occupations which should be regarded as intrinsically dangerous to mental health.
• The nature and extent of work as well as signs from the employee of impending harm to mental health (for example particular illness or vulnerability) are relevant in assessing this element.
• If there are indications that a particular worker is emotionally vulnerable or is showing signs of stress and nothing is done about it by the employer, the employer may be found to be in breach of his duty to provide a safe system and place of work.

Unlawful discrimination

In Hong Kong it is unlawful for an employer to discriminate against an employee on the basis of ‘disability’ which is broadly defined under the Disability Discrimination Ordinance to include the total or partial loss of the person’s bodily or mental functions or a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. It will also include a disability that presently exists, previously existed but no longer exists, may exist in the future or is imputed to a person.

Therefore, where an employee’s mental illness satisfies the definition of disability, it may be unlawful to discriminate against that person on this basis. Employers can then often be faced with the difficult task of assessing whether a mental illness impacts the employee’s ability to perform the inherent requirements of the role and whether there are reasonable accommodations that can be made. Discrimination issues relating to mental health conditions can be extremely tricky to navigate as an employer, and should be approached with care.

Key takeaways

With employee mental health becoming an increasing priority for Hong Kong employers, businesses are  seeking to raise awareness and facilitate the adoption of best practices. In addition, to mitigate employers' legal liabilities, investing in good employee mental health will benefit businesses bottom line, recruitment and retention, and sustainability perspectives. Employer's looking to promoting mental health at the workplace:

1. Assess current wording conditions – The starting point is for employers to:
   1. understand relevant legal requirements;
   2. identify general and specific mental health risks (such as social isolation, lack of control over workload, and role ambiguity). In addition, employers should also be alert to mental health indicators, including excessive hours, decreased performance, absenteeism, and unexplained changes in behaviour;
   3. conduct gap analysis in relation to current management of risks; and
   4. identify opportunities for improvement.
2. Set objectives ­– Organisations with clear leadership and measurable mental health objectives are best placed to reinforce existing strengths and promote new opportunities for improvement. To achieve these targets, employers shall clearly identify the means and time frame and properly designate the responsibilities for achieving the targets.
3. Take action – Employers should implement preventive and protective measures to address identified mental health hazards and risks. Measures will include training, improved infrastructure such as facilitating employee access to mental healthcare and return to work programs, and active, authentic stakeholder engagement to create an inclusive culture without mental health stigma.

In case you missed them, check out our previous Safety Snapshots on the following topics: Protection for injured workers, Working from Home, Accident Notification Obligations, Directors and Officers Liability, Occupier’s Liability and Vaccinations.