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As an employment lawyer, I often get approached by my clients about how to address mental health issues in the workplace.
The response from employers varies. Some deal with it sensitively. Some bury their heads in the sand. Some are concerned about disability discrimination, while others are unaware of its relevance to the situation. Many employers aren't aware that an employee has a potential mental health condition until they go on long term sick leave, and alarm bells may ring when they see a fit note stating “stress at work”. Is the employee suffering a mental illness? An appeal judge made a distinction between stress and mental illness in a recent case: "Unhappiness with a decision or a colleague, or a tendency to nurse grievances or a refusal to compromise, are not of themselves mental impairments”.
Not everyone with a mental health issue has a disability. Each situation has to be assessed on its own facts. There is a legal definition of disability which, once it has been established that the employee has a mental impairment, involves asking: does the impairment have an adverse effect on the employee’s ability to carry out normal day-to-day activities? Is that effect substantial? Is that effect long term?
And what does it mean for the employer if the employee does have a disability? As a lawyer I am going to be predictable and say: get advice! But here are some pointers for handling mental health issues from a legal perspective, bearing in mind that regardless of whether there is a disability, employers owe a duty of trust and confidence to their employees and a duty to provide a safe place of work:
· Deal with the employee’s issues sensitively and confidentially
· Consider getting a medical report and/or consulting occupational health to determine what adjustments are appropriate to enable the employee to carry out their role. Employers have a duty to make reasonable adjustments for disabled workers
· Consider offering to pay for wellbeing, counselling or psychiatric support if appropriate taking into account the size and resources of the organisation
· Keep in touch and communicate with the employee when they are on sick leave - a lot of employees feel forgotten about or isolated
· On the other hand, be mindful about not overwhelming the employee with work matters or excessive contact during sick leave
· Be conscious that as it currently stands, workers who are prevented from taking their statutory holiday because they are off sick are able to carry it over to the following holiday year. Take advice about how to manage holiday absence in these circumstances
· Have an equal opportunities policy which bans bullying, harassment, discrimination and victimisation of colleagues. Employers are liable for the actions of their workers
· Be mindful of mental health disabilities when going through a redundancy scoring process, performance reviews and appraisals: for example, not scoring down the disabled employee for poor attendance when time off was needed for hospital/therapy appointments
· Offer training to managers and HR so that they can understand the legal framework to managing mental health at work and apply this practically within the workplace
Jane Wheeler is a Partner at employment lawyers Hine Legal www.hinelegal.com
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