Tech monitoring for mental health: issues and good practice for UK employers

8 April 2021 | Applicable law: England and Wales

Employee mental health is a hot topic, and rightly so, given that over half of all work absences are mental health related and mental health costs UK employers an estimated £45 billion per year. The pandemic has also taken its toll – employees report that they are working longer hours from home and struggling to switch off, feeling socially isolated, experiencing ‘Zoom fatigue’. Many also report stress from financial insecurity, which has been caused by the pandemic, and anxiety provoked by the prospect of society re-opening.

Even as lockdown eases, for many companies, remote working looks set to continue. This poses a significant challenge for employers seeking to support and promote mental health across the workforce. It is inevitably harder to assess how someone is doing at a distance, so how can you meet your legal duties?

Wearable tech can help answer this question. A simple option is the Moodbeam, a wristband with two buttons. Employees periodically press the yellow button to tell their manager they are happy, and the blue button to tell their managers they are sad. Early reviews are generally positive, with managers able to identify struggling employees who would never have approached them directly. However, this binary distinction may be too simplistic. Smartwatches lie at the other end of the spectrum, giving enormous insights into employee mental health, using sleep, heart rate and movement data. The newest releases from Fitbit and Apple Watch can even track ‘electro-dermal activity’, which can be used to measure stress responses.

The potential benefits of this technology are obvious. If successful, wearable tech will give employers comprehensive data about the mental health of their workforce, and enable them to provide targeted support. However, there are some key issues to consider before signing up.

Employee engagement

Employees are often initially excited about a piece of free tech but engagement drops within the first few months. Reasons for this include concerns about employer snooping, perceptions that employers are not using the data collected to offer tangible support, and cynicism about tech being used as a replacement for a healthy and open workplace culture.

Consider seeking employee views before you invest. Consult with employees and explain that any scheme will be optional, and clearly set out what you will do with the data, and how it will be used to provide support and promote a healthy organisational approach to mental health. Emphasise that any scheme will be completely optional. Pressuring employees to participate is likely to be counter-productive. Also ask employees whether they would prefer data to be anonymous or identifiable. Early reports from Moodbeam suggest that employees prefer to be identified, but in some companies anonymous data may be sufficient to identify trends which can help the company take action on mental health.

Data protection and confidentiality

When collecting and monitoring data, you must adopt a method that is effective, whilst causing as little interference as possible with employee privacy. Be clear about what data you are collecting, what it will be used for and who will have access to it. Employee health data is ‘special category data’, and must be handled with extreme care. Only collect data in relation to new monitoring schemes where the employee has consented. Make it clear that data will only be used for the purpose of supporting employee mental health and wellbeing, and that it will not adversely affect performance reviews, career progression, or be used for disciplinary issues.

Confidentiality is key, and employees must be aware that although the confidentiality of their data will be closely protected, there may be circumstances where it is appropriate for data to be shared. With this in mind, restrict access to those who strictly need the data. Explain to employees who will have access to their data, and that their data will only be shared with their consent or where there are such serious concerns that your duty of care, as an employer, is engaged.

You may want to consider whether to adopt stricter guidelines than required by data protection law. The potential for abuse of employee mental health monitoring is significant so you will need to ensure that anyone who can access mental health data is properly trained. Misuse of monitoring data should be treated as a disciplinary offence and those who are entrusted with access to the data should be made aware of this.

Disability discrimination 

Mental health issues may qualify as a ‘disability’ under the Equality Act 2010, which gives rise to legal duties for employers. A simple example is that employees should not be treated unfavourably because their wearable device has flagged a potential mental health issue.

You should also be aware that, if you have collected data which suggests that an employee is having mental health issues, then this could give you ‘constructive knowledge’ that the employee may be disabled under the Equality Act. Such knowledge engages the duty to make reasonable adjustments to help the employee overcome work-related disadvantages they face as a result of their disability. Although not all employees with mental health problems will qualify as disabled under the Equality Act, failure to make reasonable adjustments where an employee is disabled can amount to disability discrimination.

If monitoring employees, you will not be free to ignore certain health data so you should be ready to accept the implications of the data you collect and be aware that significant risks could arise if any red flags are not addressed appropriately.

What action will you take with the data you collect? 

There is no point collecting mental health data if your organisation is not equipped to use it to support employee mental health. Consider what tools and policies should be in place to make effective use of the data you collect, and remember that your organisation should not overly rely on technology, but instead take a wider view.

Formal mental health training will help managers and senior executives understand how to communicate with employees who are struggling, when and where to refer an employee who needs formal support, and what information and resources to provide to struggling employees. Those in receipt of monitoring data should use it as a prompt to speak to the employee, rather than being tempted to diagnose the issues for themselves. There should be an agreed protocol for escalating serious concerns, so that managers are not burdened with worry and can seek support where required.

An effective policy on employee mental health is important, and you might consider whether your organisation will benefit from having trained Mental Health First Aiders, and offering access to an Employee Assistance Scheme (if you do not do so already). Many employers also offer resilience training, guided meditation sessions or other wellbeing sessions, such as yoga.

However, not all mental health support needs to be formal or costly. There are many easy and cost-effective ways that you can support employee mental health, we have set out some of our favourites below.

Top tips for supporting positive mental health and wellbeing 

  • Encourage healthy habits and self-care, such as going for walks, eating healthily, exercising and sleeping enough. You can signpost employees to free resources such as online workouts and yoga, guided meditation, breathing exercises, and other stress management tools. Increasing numbers of employers are implementing ‘no meeting’ policies, whereby meetings should be avoided where possible over lunchtimes, for example, to help carve-out time for employees to get outside during daylight hours.
  • Disconnecting from work is vital for resilience, performance and wellbeing. When working from home, one of the most effective methods is to clear desks and remove work-related visual cues outside working hours. If employees need to check work emails at the weekend, encourage them to limit this to specific times, and to switch off their work devices when they are outside working hours.
  • Encourage employees to take their whole holiday allowance, even whilst travel restrictions remain in place. Proper time to rest and recharge is vital for resilience and mental health, so try to discourage checking work emails while away, if possible. Some employers have also started offering employees one or more ‘mental health days’ each year, on top of their holiday allowance.
  • During lockdown, many of us haven’t been able to engage in our usual hobbies but the quality of rest time is as important as the rest itself. Encourage employees to engage in something practical outside work, whether this is a creative, physical or intellectual, and to get back to their old hobbies as lockdown eases.

Alex and Kate are members of the Employment team at Withers. They both studied Psychology, and have a particular interest in workplace mental health. Alex is a trained Mental Health First Aider, and regularly advises clients on best practice for supporting employee mental health. Before Kate decided on a career in law, she gained some experience in mental health settings, including volunteering at her university crisis support line.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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