Is the Health and Safety Executive doing enough to address mental health at work?

The recent mental health awareness week is an annual reminder that this topic is increasingly being talked about and taken seriously. Annual statistics for ill health at work identify a steady trend, but unlike falling numbers of injuries and fatal accidents, the trend is upwards. Stress, depression or anxiety now account for around half of all cases of self-reported work ill health in Great Britain.

Employers have a legal duty to protect workers from stress at work. Against the backdrop of worsening figures, the Health and Safety Executive’s (HSE) 10-year plan, ‘Protecting people and places 2022 – 2032’, identified a key strategic priority of reducing work-related stress and improving mental health. The plan was light on detail, stating that the HSE would ‘deliver interventions that make a real difference’.

The HSE has taken some visible steps to improve mental health, including issuing ‘Management Standards’, which are designed to help employers manage work-related stress.

A FOI request to the HSE

Part of the HSE’s strategy to reduce workplace accidents has been investigating breaches and taking enforcement action to drive compliance, including securing headline generating fines, which have increased dramatically over time. To identify trends in mental health-related investigations and enforcement action following its strategic plan, we sent a Freedom of Information (FOI) request to the HSE. We attempted to explore the distinction between two periods: the five years leading up to the HSE’s 10-year plan, and the first year of the plan’s implementation.

Surprisingly, the HSE declined to provide the requested information. We sought an internal review of the decision and the HSE upheld their original decision on the basis that ‘we are unable to search specifically for the information you have requested’. In relation to the number of mental health-related prosecutions (as opposed to convictions, which would be publicly available), the HSE withheld a response using an exemption in the FOI Act.

It is possible that the HSE has a valid reason for not providing the requested data. It referred to the lack of specific regulations regarding mental health, meaning that it is difficult to search its records for relevant entries. It may be that activity targeting the underlying risk factors, such as inadequate resourcing or bullying, makes it challenging to identify.

Another possibility is that there is sensitivity regarding mental health investigations and enforcement action. The head of the Environment Agency recently made a startling admission regarding detrimental FOI requests being buried due to concerns regarding the embarrassing truth. Is there a similar logic behind the HSE failing to respond to seemingly simple requests for investigations and enforcement data?

HSE activity

The current level of HSE activity raises several interesting questions regarding what more could be done from a regulatory perspective to better protect employees’ mental health.

The HSE generally becomes aware of accidents at work through RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) reports, which must be made by employers. Work-related stress, stress-related illnesses and suicides are not reportable under RIDDOR. Would extending RIDDOR reporting to cover work-related stress lead to more investigations and enforcement action by the HSE? How would the reporting deal with complex questions regarding the cause of the stress and the extent to which work contributed?

An increase in RIDDOR reports to the HSE would necessitate adequate funding and resources. Reports in 2023 identified that some senior HSE staff were concerned that the regulator had ‘shrunk below the critical mass to be an effective regulator’. To alleviate funding and resourcing issues, the HSE may look at developments in the enforcement powers of its regulator peers. The availability of civil sanctions is increasing, with the Environment Agency recently having been given increased powers to issue unlimited variable monetary penalties, without the need to take cases to court, saving time and cost. The potential for high value civil penalties to be imposed presents numerous risks. Civil sanctions must be used reasonably and proportionately, with appropriate safeguards in place.

The HSE rightly identified that action is needed to address worsening mental health at work. The precise steps that the HSE envisages or has undertaken to date are unclear, and its cagey approach to providing figures is unilluminating. Further action appears necessary to replicate the positive reductions seen in accidents at work.