There is a mixed reaction to mental health in the work place. Some employers are sympathetic and seek to work with their staff, offering access to Counselling, Occupational Health referrals and paid leave. Others suffer with managing the absence in a busy and potentially small team.
What is the correct legal approach?
I would always discuss whether the employee qualifies as being disabled under the Equality Act 2010. If so, there is a duty on employers to make reasonable adjustments. Even if the employee is not disabled, it is still reasonable to consider and put in place adjustments, if feasible. An Employment Judge is never going to frown on an employer seeking to support their employee.
So how do you know if they are disabled? Well, the Equality Act provides a legal definition rather than a medical one. You may find, if you obtain medical reports, that the GP or OH Adviser sits on the fence and will not give an opinion as to whether the individual is disabled or not; this is due to the legal tests involved.
An individual is disabled if they have a physical or mental impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities.
By long term we are looking at a condition that either has lasted (or is likely to last) for 12 months or more.
If an employee is suffering from stress, anxiety or depression, that is clearly going to be a mental impairment. If it is preventing the employee from attending work, or having an impact on their performance, it is impacting on their day to day activities i.e. work. The question of whether it has a substantial and long term adverse effect is always going to depend on the circumstances of the illness. NB not every employee suffering with their mental health will be a disabled employee for the purposes of the Equality Act.
So what can you do?
As above, reasonable adjustments are what you are ideally aiming to put in place. There are three main requirements under the duty to make reasonable adjustments. However, for the purpose of this article, we will focus on some practical examples. If you would like to learn more about the legalities (or have a situation with an employee on sickness absence), please see the contact information at the end of the article.
Reasonable adjustments for someone suffering with their mental health could be a reduced workload for a period of time, a phased return (be it either shorter hours or a change to the number of days worked) or lower targets to work towards. Ordinarily the adjustments are for a temporary period to assist the employee’s recovery. The aim is that as the employee’s health improves, they work back towards their original duties, with it not being quite a shock to the systems as potentially being off for months and then returning back to the workload that may have caused the illness (or contributed towards it)*.
However, if you have a disabled employee, those adjustments could be made on either a longer term, or permanent basis.
*Granted not all mental impairments will be work related, some will be previous medical conditions or private matters, which you will have no control over, but by applying adjustments (where possible) you are helping to get your employee back on their feet and arguably, to the person you originally recruited.
If that is not feasible, or the absence is so long term, you may have to look at dismissal. There is a bit of a myth that employees on sickness absence cannot be dismissed. They can but there could be risks, particularly if the employee meets the disability definition. Please note, this article is not seeking to encourage dismissals but for some employers, it may come to a time to part ways. Dismissal on the grounds of capability is a fair reason to dismiss but employers can fall down on the procedure and then face allegations of disability discrimination.
If you find yourself experiencing mental health in the workplace, my advice is:
Take legal advice early to ensure you follow a procedure that will help both parties and avoid allegations or claims for disability discrimination;
Consider training for your management on how to deal with mental health in the workplace. This can be a valuable tool to sport the signs of employees suffering and you may then be able to address the matter, without it escalating to the employee having to take time off.
Whilst this article has focused on potential work related stress, as above, there may be pre-existing conditions. An open door policy, and having a good working relationship with your employees, hopefully will mean better management of mental health in the workplace. Contact us for further details.