Does mindfulness at work carry a legal risk?

Hannah Ford, 15 April 2016

Employers could create more stresses than they alleviate, and they may even be open to claims, writes employment lawyer Hannah Ford.

It seems you can’t go a day without another headline about workplace stress. Employers lost 9.9 million working days to work-related stress, depression and anxiety in 2014-15, according to the Health and Safety Executive, and two-fifths of respondents to the CIPD’s Absence Management 2015 survey said stress-related absence in their organisation had increased over the past year.

To mitigate the cost of employee absence and the risk of stress-related claims, many employers are looking to alternative practices to help staff learn new tools to cope. Top of the buzzword list at the moment seems to be ‘mindfulness’.

Defining it as ‘a mental state achieved by focusing one’s awareness on the present moment, while calmly acknowledging and accepting one’s feelings, thoughts and bodily sensations’, Nicky Anstey, master NLP life coach at Mind-Body Wellness, says: “The best employers are those that nurture a symbiotic relationship, to increase the performance and wellbeing of their employees.”

But there is a flipside to mindfulness training, and employers should be wary when considering offering it to their workforce.

1) Who is it offered to and how is it being communicated?

Mindfulness practices should be viewed as both a training tool and an employee benefit. Inequitable distribution could give rise to a claim from an employee, particularly if they could demonstrate that the training is relevant and appropriate to their role, or that they were excluded for a discriminatory reason or preconception.

Employers that offer mindfulness training exclusively to specific groups or strata of their workforce are arguably conceding that those roles are more susceptible to stress than others, and as such that medical conditions associated with stress may be ‘foreseeable’. As a consequence, employers could be argued to owe a higher duty of care to employees performing those roles.

2) When are you running these workshops?

Mindfulness training should almost always be communicated as voluntary. As such, employers should carefully consider the timing of training sessions and its consequences. It is a common ‘own goal’ for employers to schedule such training during working hours at peak pressure times, thereby exacerbating the workload of attendees when they return to the day job. Scheduling such training outside of working hours may lead to an argument that the training is ‘working time’ and as such should be paid. The scheduling might also exclude certain groups from attending altogether, such as working parents or shift workers.

3) Will it stand up in court?

Mindfulness training is a form of therapy and should be treated with caution. As Anstey says: “It’s important to note that all psychotherapy and therapies linked to the mind should be based on the principle that the employee needs to take responsibility for the way they think, feel and behave; only the individual can change who they are. This is an important point to stress to every individual starting any therapy.”

If an employee declined such training and subsequently pursued a stress-related personal injury claim, an employer may rely on the offer of mindfulness training to show that their duty of care was met, and that a culture of employee support and wellbeing existed in their business. However, given that such training is reliant on mutual engagement and responsibility, there is no certainty that this argument would gain any traction with the courts or at an employment tribunal.

4) Have you prepared any alternative measures?

It is also possible that undertaking mindfulness training may prompt an employee to seek other forms of counselling or support from the employer to deal with their workplace stresses, which an employer would be obliged to consider.

Creating a culture of employee wellbeing is far from simplistic, and, when considering mindfulness training, employers should tread carefully or risk creating more stresses than they alleviate.

Hannah Ford is senior associate in the employment, pensions and immigration team at Stevens & Bolton LLP