Frequently employers find themselves in a position where an employee is suffering due to mental health issues at work. For some employees, their mental health may impact performance at work, it could lead to short term absences, while for others their mental health may cause them to be unfit for work on a long-term basis.
When an employee is absent from work due to mental health issues, an employer can be left unsure as to how to handle the absence and whether they should contact the employee. Often, both employees and employers are under the misconception that employers are not permitted to contact an absent employee when the opposite is true. From an HR perspective reasonable contact with an employee on sick leave is often encouraged. Managing the absence sensitively and having an awareness that mental health issues at work may be a factor in the employee’s own behaviour is key to employers demonstrating that they have acted reasonably in managing any absence. We review a case and the issues surrounding mental health and absence management.
Mental Health Issues at Work | Background to the Case
The case of Flemming v East of England Ambulance Services NHS Trust highlights the importance of employers taking the correct steps to appropriately manage absence due to mental health issues. Mr Flemming was employed by the Trust from 2009 as a vehicle technician. In April 2012 Mr Flemming had an argument with his line manager, following which he suffered a heart attack. In July 2012 Occupational Health declared him fit for work. Mr Flemming and his line manager engaged in internal mediation, however this was not successful. The tribunal heard evidence that Mr Flemming was given an ultimatum to shake hands with his accuser before he was permitted to return to work. Mr Flemming was again admitted to hospital. He reported that neither the management team or HR were in touch to enquire about his health and well-being, leaving him upset and concerned by this.
Absence Management Failings
Between October and December 2012 Mr Flemming made two attempts to return to work but his return was not sustained and after a further incident with his line manager on 5 December 2012, Mr Flemming again reported as absent from work and on this occasion he did not return. Mr Flemming’s fit note stated, "panic disorder, awaiting resolution of aggravation at work" and a diagnosis of depression followed. In May 2013 options to include ill health retirement and termination of the contract on the grounds of capability were considered, but no decision was made. A further Occupational Health report in December 2013 stated that current clinical descriptions were inadequate and that Mr Flemming was suffering from post-traumatic embitterment disorder. The OH practitioner described the symptoms as "chronic, hard to treat and [can] often result in disability in almost all areas of life”.
Throughout 2014 and 2015 various welfare meetings were scheduled, many of which were not attended by the employee. In June 2015 Mr Flemming wrote to HR accusing the organisation of corporate bullying on such a scale he had considered ending it all. The response to Mr Flemming from HR read, “I appreciate you may have mental health problems, but this letter is not acceptable. In future do not write to anyone else in the Trust except me. If you continue to write such letters we will refer them to our solicitors”. Mr Flemming was eventually dismissed in November 2015 on the grounds of gross misconduct following allegations of failure to follow reasonable management instructions.
Tribunal Judgement
In its judgement, the tribunal recognised that the employee had been difficult to manage, failed to follow instruction and would at times simply not-cooperate with what had been genuine attempts to resolve the employment difficulties. However they went on to comment that the Trust had failed to take a holistic approach in managing the absence. Nine Occupational Health reports had been received, yet the tribunal’s view was that the contents or recommendations were not adequately dealt with. The tribunal further regarded the response from HR to Mr Flemming’s suggestion that he was contemplating suicide to be ‘appalling’ and ‘demonstrated no insight at all into the likely impact on a person contemplating suicide’. The tribunal were also critical of the Trust’s failure to consider outside mediation or to assist in an application for ill health retirement.
The tribunal upheld claims of unfair dismissal and discrimination arising from disability.
So what can be done to support employees with mental health issues at work?
- Maintaining reasonable contact with the employee by way of telephone calls and welfare meetings is often advisable. Agreeing with an employee as to the level of contact they prefer can help employers get the balance right and put steps in place to manage the situation proactively.
- Occupational Health input can be invaluable to managing absence, but this case highlights the importance of following through on the recommended actions; it is not enough to simply refer the employee if the advice received is not then appropriately implemented.
- Finally, employers must be mindful that mental health may play a part if an employee who is seemingly acting unreasonably and allowances should be made for that to demonstrate that the employer has acted reasonably at all times.
Tips to help manage employees with mental health issues
Performance
It is common for employers to have to deal with employees who are underperforming. How an employer manages an underperforming employee can become harder if the employee in question suffers from mental health issues. As ever, an employer should provide help and support when dealing with a poorly performing employee, however an employee with mental health issues could be regarded as disabled, which adds a greater duty on the employer to consider reasonable adjustments.
It would be wise for employers to organise for the employee to attend occupation health. Potential reasonable adjustments for someone with mental health issues could include:
- Encourage conversations, build a plan to help the employee to meet the needs of their role.
- A change in hours, this could include reducing hours worked or time when work is done.
- Workload adjustments.
- Changes to their working environment, this could be element of home working or possibly a change of desk to allow them to work in a quieter area.
- Extra support from work colleagues.
What can cause confusion on occasions, is that while an employee maybe regarded as disabled, their disability is not impacting on their performance, therefore it is important for employers to clearly identify any performance issues and consider whether or not the employees’ disability is affecting their ability to perform their role to the required standards of the company.
Long-Term Sickness Absence
An employee who is off sick long term with mental health issues, can still be fairly dismissed, however it is important that a fair and reasonable process is followed, if not, an employee may have the right to claim unfair dismissal and/or disability discrimination.
A fair process would include welfare meetings with the employee, to consider ways to help a return to work and a professional medical opinion should be sought, either from the employees’ doctor or occupational health and on occasions, both. Any suggested adjustments should be considered and put into place if reasonable to do so.
When it is considered reasonable to dismiss, will vary from case to case, determining factors could be the impact the absence is having on business operations, the length of time off, when and if the employee may be able to return to work and if there are any possible reasonable adjustments.
High Levels of Short-Term Absence
If an employee is disabled due to their mental health issues, then it could result in them having periods of short-term absences. An employer should look to work with the employee to try and help reduce the number of days absence, this is again where reasonable adjustments should be considered. Examples of such adjustments were covered earlier under performance, adjustments such as these can hopefully help keep the employee in work more often.
If reasonable adjustments in everyday working practices do not help to restrict sickness absence, the employer needs to be wary of treating the number of absences the same as they would another employee who may not be disabled. Many employers will have trigger points, where a certain number of sickness absences may result in a warning being given. When dealing with a disabled employee, a further reasonable adjustment is likely that any trigger point is increased.
If you have an employee who suffers from mental health issues and requires reasonable adjustments, then it is best to seek advice, as each employees needs will differ and what may be a reasonable adjustment for one employer, may not be reasonable for another.
For advice on mental health issues at work and managing an absent employee, get in touch with our Employment Law Consultants today.
