Employers' mental health legal obligations and potential risks of neglect

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When it comes to employee wellbeing, addressing mental health has been a recurring theme in Hong Kong in recent years, as the city has been notorious for its long working hours, insufficient mental health support and stressful business environment.

For companies in Hong Kong, this year's COVID-19 pandemic can be a double-edged sword. While the social distancing rules are exacerbating employee mental health, the severity of the pandemic can also be a turning point for companies to start addressing employees' mental health issues, which is a good thing. 

Helen Colquhoun, head of employment, DLA Piper Hong Kong told Human Resources: “The challenges we have all faced during the last few months, and continue to face, have inevitably had an impact on people’s mental health and wellbeing. The virus itself and the measures put in place to tackle it, have led to many experiencing stress and anxiety as well feelings of isolation, depression, and other emotional, family or financial stresses."

“Some employers who have already recognised the importance of employee wellbeing have refreshed their wellbeing programmes to make them fit for the challenges of COVID-19. Others have expedited future plans for implementation of programmes and some are now looking at the issues for the first time."

To coincide with World Mental Health Day (10 October), DLA Piper's latest research listed employers' legal obligations and the legal risks employers might encounter if they continue to ignore the matter. 

Colquhoun pointed out that employers in Hong Kong have a duty (both at common law and under statute) to provide a safe place of work so far as is reasonably practicable. In principle, this duty extends to safeguarding an employees’ mental safety as well as their physical safety. There are no other positive obligations on employers to specifically protect the mental health of their employees, either generally or as a result of COVID-19. Having said that, in some of the risk areas identified below, it may not be enough for the employer to say they were simply unaware that the employee was suffering from a mental health condition.

“Employer intervention will not remove entirely the potential negative impact of poor mental health within the workforce, however, the significant benefits of providing support, such as increased productivity, improved work quality and better employee engagement, present a strong business case for workplace wellbeing programmes," Colquhoun said. 

“Workplace wellbeing programmes aren’t just the right thing to do, they’re smart and responsible business.”

Risk of claims 

Discrimination: Mental health related discrimination claims are common. Employers have an obligation not to discriminate against or harass employees and other workers on the grounds of their disability. “Disability” is defined extremely broadly in Hong Kong and can include a wide spectrum of mental health conditions.

If an employee has been the subject of discrimination or harassment, they can bring proceedings in the Equal Opportunities Commission and/or the District Court. The remedies for such claims vary but are generally based on economic loss and can include monetary damages for injury to feelings (among other things).

Employers can also be vicariously liable for the wrongful acts committed by their employees in the course of their employment, even if the acts were carried out without the employer’s knowledge or approval.

Workplace compensation: If an employee sustains an injury or dies as a result of an accident arising out of and in the course of their employment, the employer is in general liable to pay compensation under the Employees’ Compensation Ordinance even if the employee might have committed acts of faults or negligence when the accident occurred. Employers are required to take out mandatory insurance at specified levels of coverage to cover the cost of such claims.

Although mental health related claims are not the primary intent behind the Employees’ Compensation Ordinance which is intended to apply to “accidents” and “injuries”, mental health claims are not expressly excluded from its scope.

Personal injury: Employers have a duty (both at common law and under statute) to provide a safe place of work so far as is reasonably practicable.

It is possible that an employer can be liable in negligence for breach of this duty if they have failed to take reasonable steps to safeguard their employees’ mental safety. The standard of care in such claims is whether a reasonable employer, having regard to all the circumstances, including the individual circumstances of the individual in question, would have been able to foresee the injury that arose from the breach of the duty of care.

While such claims are relatively unusual in Hong Kong and there is currently limited case law on this, as they are often difficult and expensive (both in terms of time and financial cost) for employees to run, it is anticipated there will be an increase in such claims going forwards.