Mental health at work: How healthy is the law?

In the second of a three-part series, member firms of Ius Laboris outline the law across Finland, Sweden, Denmark, Romania, Hungary and Poland about mental health at work

You can read the first part, covering mental health at work in Western Europe, here. 

Denmark

According to a study published in 2018, around 15% of Danish employees have experienced symptoms of stress or depression because of their work. Under Danish law, there is an obligation for employers to ensure a healthy and safe work environment in general but there is no specific regulation of mental health.

The Danish Government and society in general do, however, have increased focus on mental health issues. The Working Environment Authority and the social partners recently launched a campaign against sexual harassment and offensive behaviour in the workplace. In addition, the Danish Parliament has announced that it intends to adopt a specific act on the mental working environment.

Finland

Employers have a general duty to consider everything that could affect their employees’ health and safety at work and to take necessary measures to protect the employees from health hazards (under the Occupational Safety and Health Act). This covers not only physical welfare but also issues such as mental health. In addition, Finland has case law and academic literature on the subject.

Sweden

The Swedish Work Environment Authority introduced a regulation regarding employees’ social and organisational work environment in 2016. This has received a lot of media attention in recent years. In short, the employer’s obligations are, for example, to ensure a work environment without discrimination and harassment but also to ensure that the employee’s working hours and workload are feasible.

Romania

The only specific legal reference made to psychological harassment at work relates to gender equality: Law No. 202/2002 on equal opportunity and treatment between men and women. Special attention is given in it to psychological harassment in the workplace, which is defined as any unjustified behaviour that takes place over a period of time, is repetitive or systematic and involves physical behaviour, written or verbal language, gestures or any other intentional acts that may affect the personality, dignity, physical or psychological integrity of an individual.

Nevertheless, in practice, when analysing a psychological harassment claim by an employee, the courts base their judgment on the general principle of dignity at work as provided in employment legislation.

Hungary

With regard to the increasing level of mental health problems and its detrimental social consequences (long-term sickness, medical costs etc.), there is currently an intensive discussion on this topic at academic and university level in Hungary.

Although the law includes some provisions regarding prevention and obligations on employers, there is no significant case law in Hungary on this subject, since the direct connection (causation) between mental health conditions and work-related circumstances (e.g. extremely high-stress levels, conflict in the workplace) is mostly not provable.

However, a new judgment was recently published, where the causal link between sickness and the working environment was provable from a medical point of view and accordingly, the employer’s responsibility could be established. This may indicate potential changes in Hungarian judicial practise on the subject of mental health at work.

Poland

There are no specific regulations regarding mental health in the workplace in Poland. If there are doubts about an employee’s mental health, the employer may request the employee undergo an additional general medical check-up. However, only the occupational health physician during such a check-up can refer an employee to a psychiatrist. The employer should have grounds to justify the request, because the employee may consider it as harassment, discrimination or violation of his or her personal rights.

On the other hand, there have been cases of employees in Poland using mental health problems to obtain a sick leave certificate from a psychiatrist in order to gain protection against termination of employment (even with retrospective effect).

Contributing members to this article include:

Yvonne Frederiksen of Norrbom Vinding in Denmark
Inari Kinnunen of Dittmar & Indrenius in Finland
Petter Wenehult of Elmzell in Sweden
Andreea Serban of Nestor Nestor Diculescu Kingston Petersen in Romania
Henrietta Hanyu of CLV Partners in Hungary
Edyta Jagiełło and Zuzanna Lewandowska of Raczkowski Paruch in Poland

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