Teacher wellbeing: Where does your school stand legally?

Posted: 11th July 2023

The mental health and wellbeing of principals, heads and staff in education settings such as independent schools has always been important.

With mental health issues accelerated by the Covid pandemic, the effects of long Covid and the impact of the cost-of-living crisis, this has increased pressure on staff, pupils, parents and schools, bringing into question how schools can continue to support staff whilst still offering high-quality education.

May this year saw Mental Health Awareness Week being celebrated with the theme of “anxiety”. Anxiety disorders affect over eight million people in the UK, that is around one in ten of us.

There are many different forms of anxiety, but all too often, anxiety can be dismissed as “just worrying” or “just being stressed”. Schools are seeing increasing levels of staff suffering from anxiety, with workload being cited as a key factor contributing towards this.

A priority

For many independent schools, staff wellbeing and good mental health is already a priority. Schools recognise that poor mental health can have a significant impact on staff, not only in their personal life but also in their ability to perform and carry out their roles. This will, in turn, affect teaching and the education that your pupils are receiving.

“All too often, anxiety can be dismissed as ‘just worrying’.”

With continuing upwards trends around teachers suffering from mental health issues, many teachers are considering leaving the profession so it is now more important than ever for employers in independent schools to take action.

The latest Education Support Annual Report and Teacher Wellbeing Index has confirmed that:

  • 75% of all staff are stressed, rising to 84% for school leaders.
  • 36% have experienced a mental health issue in the past academic year
  • 59% are not confident in disclosing unmanageable stress or mental health issues to their employer
  • 48% of all staff feel their organisations do not support employees well who have mental wellbeing problems
  • 59% have considered leaving the sector in the past academic year due to pressures on their mental health and wellbeing.
Why should we be concerned?

All independent schools should be mindful that a mental health condition may be an impairment which is deemed to be a qualifying disability under the Equality Act 2010.

This means that it is important to consider the impact and application of the Equality Act 2010 when managing staff with mental health conditions and to ensure that you are not opening yourselves up to claims of discrimination, which, if successful, could result in potentially unlimited compensation being awarded. The Act applies no matter how many employees you have or how long they have worked for you. The most relevant of the protected characteristics in these circumstances is disability.

Under the Equality Act 2010, a person is deemed as disabled for discrimination law purposes if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.


In cases involving physical injuries, it may be obvious whether an employee is disabled or not within the definition of the Act. However, in cases involving mental health conditions, such as stress, anxiety and depression, it is not as easy to assess.

In cases such as this, it is always prudent for the employer to obtain a medical assessment, usually in the form of an independent occupational health report, on a particular employee in order to assist you in making a judgement and/or to consider the extent of any reasonable adjustments that might be required. If the case is borderline and/or you are unsure, the safest route would be to proceed on the basis that the employee is disabled.

Interestingly there have been calls for both menopause and Long Covid to be recognised as conditions that are automatically treated as disabilities under the definition of the Equality Act 2010. To date, this has been rejected by the Government. Despite this, it is possible for these conditions to be considered a disability under the current definitions.

In one of the first landmark Long Covid cases post-pandemic, Burke -v- Turning Point Scotland (2021), the Scottish Employment Tribunal determined that Long Covid did amount to a disability.

Avoid assumptions

This case was not binding on other tribunals, but other cases have followed and the same decision has been reached. But outcomes will depend upon the facts of each particular case. Each case will be determined on its own facts and needs to be considered taking into account all available evidence as against the statutory definition.

It is also important to remember that disability discrimination protection under the Equality Act is extensive. Protection extends to claims for indirect discrimination and discrimination for something connected to a disability (although the employer will sometimes be able to justify such discrimination). It may also require employers to make reasonable adjustments to accommodate any disability. This could involve a variety of adjustments, such as allocating some duties to another member of staff or allowing more breaks.

How should we manage this?

Everything outlined so far emphasises the need to proceed cautiously when managing staff with mental health conditions. There are significant issues affecting the health and wellbeing of those working within the education sector and these cannot and should not simply be left.

As a school, you may be wary of taking any action, particularly where a staff member’s absence has been prolonged and/or if the cause of the illness is not clear or they are awaiting a diagnosis.

It is important, however, not to allow the situation to drift until it reaches the point that the member of staff has been off for so long that dismissal starts to look like the only option. This can lead to issues for you in relation to successful claims of unfair dismissal (if over two years’ service) and/or disability discrimination.

Reasonable and fair

You should apply reasonable and fair principles relating to sickness absence management and ensure that managers, senior leaders and any staff undertaking absence management are familiar with and applying your policies and procedures. They also need to be aware of potentially wider risks and steps that may need to be taken to support a member of staff with a mental health condition.

Often the difficulty with mental health conditions is that obtaining definitive information, particularly about prognosis, can be very hard. This may mean that you need to take proactive steps to enquire beyond the reasons given on Fit certificates.

Why is this important for us?

Children’s future and the wellbeing of school staff are interconnected, as healthy teachers are better able to provide a high-quality education and support for pupils. This will, in turn, cultivate a mentally healthy school, help retain and motivate staff and promote pupil wellbeing and attainment.

Current employment tribunal statistics available on claims made between April 2021 and March 2022 confirm that the maximum award made in a disability discrimination case was £225,893, with average awards of £26,172; not small sums. On top of these are the costs of management and staff time spent in responding to the claim and preparing for the tribunal as well as witness attendance at any hearing.

Self care

Much of the responsibility will fall on the principal, headteacher and/or senior management team. It is important for these individuals to remember to look after themselves as good mental health and best practice will be modelled on these individuals’ behaviours and ensure a culture of trust between staff.

Whilst individual schools can and should identify actions, I feel there needs to be a concerted effort from the Government and relevant bodies to better support schools in order to tackle the issue of staff mental health.

The Department for Education introduced the Wellbeing Charter in 2021 for all employees working in state education settings as a shared commitment to promote and enhance the wellbeing of staff. Independent schools have been encouraged to make use of the principles and organisational commitments in the charter but cannot sign up to it.

Staff wellbeing action plan

Introduce a wellbeing strategy and policy which is produced with input from staff, governors, pupils and parents.

Ensure that you have clear policies around managing staff absence and supporting staff wellbeing and that these are followed.

Introduce staff wellbeing support such as:
  • Providing sessions around mindfulness, workplace relationships and managing stress, this could be delivered in person or accessed via an appropriate app.
  • Ensuring that teacher targets are realistic and providing praise when praise is due
  • Encouraging a buddy system for reflective practice and problem-solving
  • Providing a dedicated space where staff can go to take time out
  • Encouraging staff to take their breaks and finish on time
  • Consulting about change and new strategies
  • Training staff to recognise, understand and deal appropriately with mental health conditions and minimise stigmas around this.

Source: School Management Plus: School & education news worldwide

Categories: TIOB News