An influential HR specialist and founder of the National Bullying Helpline explains the law around stress and depression at work
We don’t expect line managers to be experts in mental health, no more than we expect them to be barristers at law, but we do expect them to manage employee issues and observe changes in behaviour or performance.
An employer has a duty of care to provide a safe and stress-free place of work. There are also disability laws, implied duty of care laws and health and safety implications where an employer fails to observe the welfare of staff.
Above all, if stress/anxiety is caused by something occurring in the workplace, the employer needs to take immediate action and investigate. An employer should not wait for a formal complaint to be submitted before embarking on a workplace investigation.
HOW TO CONDUCT A RISK ASSESSMENT FOR STRESS AND DEPRESSION AT WORK
Risk Assessments need to be carried out in all cases where there is a perceived, or alleged, failure of duty of care on the part of the employer to provide a ‘safe and stress free’ place of work. This practice should form the fundamental basics of all line-manager training. Far too many managers lack people skills and simply do not know what steps to take and when – or worse, they feel unable to draw on policies and procedures. In complex cases, employers should seek independent expert advice.
Employers should record annual absence and turnover statistics and monitor change. Ultimately, this important task (however tedious it may seem) rests with the line manager. A manager should be approachable and will ensure his/her staff understand in-house policies, or at least know where to access policies and procedures and seek support. Co-workers and bystanders have a role to play too and should be encouraged to flag-up any issue where a colleague shows signs of distress or ill-health at work.
GRIEVANCES DO NOT NEED TO BE IN WRITING TO BE ACTED UPON
All employees should be encouraged to speak freely to management about poor health or about something causing them distress in the workplace without fear of repercussions.
It is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure (Shergold v Fieldway Medical Centre (2006) IRLR 76, RAT on 5 December 2005, reported at (2006) ICR 304).
A good line manager will notice a change in performance or behaviour and will act on it. S/he should talk to the employee confidentially to establish whether the anxiety, depression or poor health issue is work-related, or not. If it is, immediate action should be taken to investigate the cause of the problem.
In particular, it is not uncommon for an employee to show visible signs of distress in the workplace following a formal meeting such as a grievance, disciplinary or following a (seemingly overly critical), performance review process. Make sure this category of worker gets home safely. Do not allow them to drive home. Ask the employee to call to let you know they have arrived home safely, or arrange for a colleague to take them home.
WHEN MENTAL HEALTH LEADS TO ABSENCE
Managing illness that impacts on performance is not straightforward. Each case needs to be addressed on a merit-by-merit basis.
Where the employee is able to continue working through a medical condition, the case should be well documented and medical expertise relied on. Every discussion between a manager and employee should be documented.
Workplace adjustments will help the employee feel both supported and valued. A quiet word of reassurance can go a long way. Consider, ‘come and see me if you want to talk’ or ‘let me know what we can do to help’. Follow up all offers of support in writing. Reiterate, repeatedly, that support is available.
CAN YOU ISSUE A FORMAL WARNING FOR SICKNESS?
We are involved in a number of cases currently where formal warnings are routinely issued for sickness absence. In one case, an employee has been issued with an informal and a final written warning for absence due to ill health. She is currently off sick again for genuine reasons and knows that when she returns to work she will be hauled through a formal disciplinary process that is likely to result in dismissal. This is compounding her stress and anxiety levels, as she is, simply, fearful of returning to work.
Dismissal on grounds of capability due to ill health needs to be reviewed urgently. Punishing an employee for being absence due to ill health is outdated and is contrary to other, positive, initiatives such as rehabilitation programmes and duty of care obligations.
The threat of dismissal coupled with heavy-handed processes create both barriers and trust issues and very often a reluctance on the part of the employee to cooperate with in-house occupational health schemes.
DISMISSAL FOR SOME OTHER SUBSTANTIAL REASON
For 22 years Tom worked for a medium-sized distribution company in their warehouse as a fork lift truck driver. He had a good attendance and conduct record and he was a dedicated employee.
One day Tom had an epileptic fit while at work. He was sent home immediately and subsequently signed off work while tests were carried out. The business owner valued Tom but was unable to allow him to return to work and drive the forklift truck for both safety and insurance reasons. An independent medical report confirmed Tom’s worst fears. He was prohibited from driving, for his own safety as well as for the safety of others.
Tom’s skills were limited and there was no other, possible, role for him within the firm. The business owner sought advice and eventually decided to release Tom on grounds of SOSR (Some Other Substantial Reason).
In Tom’s case it was no one’s fault that a life-changing medical condition prohibited him from driving.
SOSR is a term used where it is neither the employer nor the employee’s fault that the employment contract has to end. There is no need to Dismiss on grounds of Capability Due to Ill Health if SOSR applies.
In cases where an illness is alleged to be ‘work related’ or where a grievance or appeal is on record and the employee and employer are in conflict, Dismissal on Grounds on Capability Due to Ill Health should simply not be permitted. Employers should be fined heavily by tribunals for such practice. Much more effort should be made to remedy the workplace difficulties (real or imagined) and get the employee back to work, before exit strategies are considered.
Christine Pratt FCMI is founder of HR & Diversity Management and the National Bullying Helpline. She is a Fellow of the Chartered Management Institute. This article does not constitute legal advice.