It is reported that depression, which is just one form of mental ill health, is the second leading cause of disability worldwide. The Office for National Statistics reported that in 2018/19, stress, depression or anxiety accounted for 54% of all working days lost due to ill health. We have also seen mental health being affected directly because of Covid-19.
Mental health can have a significant impact on an employee’s wellbeing at work, and as a responsible employer, we have obligations to protect the health, safety, and wellbeing of those who suffer with it. This article looks at absence management due to mental health challenges and explores how organisations can take reasonable steps to manage them in a sensitive way.
What is mental health?
The World Health Organisation (WHO) defines mental health as:
“Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity….it is a state of well-being in which an individual realises his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community”.
You may be more familiar with mental health disorders such as anxiety, depression and bi-polar, but there are many more conditions such as post-traumatic stress disorder, schizophrenia, psychosis, personality disorders, eating disorders and post-natal depression. Mental ill health is a complex medical condition as each mental health disorder has its own set of physical and psychological symptoms, and furthermore, even people who suffer from the same condition can experience different symptoms and any commonly shared ones may be suffered to a different extent. It is vital therefore to not apply a blanket approach when managing mental health absences in the workplace, but to address and support each one in its own context and set of circumstances.
Mental Health Key Facts
According to the WHO:
- Depression is the leading cause of disability worldwide
- Globally, more than 264 million people of all ages suffer from depression
- More women are affected by depression than men.
According to the charity Mind:
- One in four people will experience mental health problems of some kind each year in England.
- One in six people report experiencing a common mental health problem such as depression or anxiety in any given week in England.
According to the Health and Safety Executive’s (HSE) research report “Work–related stress, anxiety or depression statistics in Great Britain 2020”, it reports:
- 828,000 workers suffered from work related stress, depression, or anxiety in 2019/20
- 17.9 million working days were lost due to work related stress, depression, or anxiety in 2019/20
- 51% of all work-related ill health cases in 2019/20 were due to depression or anxiety
- 55% of working days lost in 2019/20 were due to depression or anxiety
- Workload, and in particular tight deadlines, too much work or too much pressures was the prominent causes of work related stress, depression or anxiety.
The HSE defines work related stress, depression or anxiety as a harmful reaction people have to undue pressures and demands placed on them at work.
Unfortunately, mental health conditions can arise from within the workplace. However, it may be something at work that triggers a mental health episode in someone who is already susceptible to poor mental health and who may have a history of it, or it could in severe and perhaps exceptional cases, be the root cause of a mental health condition. Poor mental health can be caused by:
- Personal life and relationships
- Money, work, and housing
- Life changes
- Health issues
- Traumatic life events
- Smoking, alcohol, gambling, and drug misuse.
Consequences of mental ill health in the workplace
Regardless of the cause, the consequences of mental health in the workplace can be significant.
- Poor health – high blood pressure, heart disease, sleeping disorders, headaches, lower immune system
- Absenteeism – increased sickness absence, including periods of intermittent short-term absence and/or long term ill health
- Work performance – reduction in productivity and output, increased errors and accidents, poor decision making, deterioration of planning and control of work
- Attitude and behaviour – loss of motivation and commitment, increased working hours, poor timekeeping
- Relationships at work – workplace conflict and tension between colleagues, poor relations with clients/customers, increase in disciplinary problems.
Protecting Employee’s Health, Safety, and Wellbeing
There are legal obligations placed on employers to adhere to both health and safety and employment legislation which means employers have a duty of care to protect their employees’ health, safety, and wellbeing. However, it is not just a legal duty, there is also a moral and ethical duty to protect and prevent employees from physical or psychological harm by taking all reasonably practicable steps.
Claims can arise from incorrect handling and management of mental health absences. For example:
Discrimination claims (Equality Act 2010)
The Equality Act 2010 protects employees who hold a protected characteristic from discrimination in the workplace. A protected characteristic includes age, sex, disability, sexual orientation, religion or belief, pregnancy and maternity leave, marriage and civil partnership, race (including colour, nationality, ethnic or national origin) and gender reassignment. Mental health can be a disability for the purpose of the Equality Act 2010. The legislation defines a disability as “a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities”.
Where an employee’s mental health is considered a disability, then this automatically requires the employer to make reasonable adjustments to the workplace where appropriate., This could include adjustments to the hours, role, equipment, or environment. The protection covers employees from being directly discriminated against and treated less favourably to someone else for their protected characteristic. They are also protected where rules or practices are put in place which then disadvantages the employee (indirect discrimination). It also makes it unlawful to harass or victimise an employee when that treatment is connected to or arising from that protected characteristic.
This is a claim resulting from a breach of the implied term of trust of contract, that exists in the employment contract between employee and employer. It occurs when the employee resigns because of the actions of their employer, and it this resignation that would be a dismissal as opposed to the employer carrying out the dismissal.
In the context of mental health, the resignation could arise because of the way the employer handled their condition or failed in their duty of care.
Personal injury claims go through the small courts. An employee can bring a personal injury claim for losses following their employer’s lack of duty of care, and that it was reasonably foreseeable that such loses would occur. However, where an employee does have an employment related discrimination claim lodged with an employment tribunal, then if successful, the tribunal can award costs in regard to injury to feelings. The purpose of this element is to compensate the individual for the hurt and distress they have suffered rather than to punish the employer or persons held liable for the discriminatory conduct.
General Absence Management
Absence management is crucial for supporting the ongoing health and wellbeing of your employees as well as ensuring the business does not suffer adversely because of it. It can be both informal and formal, and the procedures adopted need to strike the right balance between supporting the employee’s welfare and protecting the business needs. This can be particularly hard especially when dealing with very serious health issues such as mental health.
If not carefully managed, it could be perceived by the employee that having their absence managed means it is not considered genuine. Absence management should never be about questioning the genuineness of the health record (although there can still be conduct issues linked to attendance). Ultimately, the aim is to see an improvement in attendance levels. Of course, this is not always possible.
Having clear procedures in place ensures that sickness absences can be dealt with in a fair and consistent way, and different approaches should be taken depending on whether the absence is short or long term.
Whilst a set procedure should be followed for ensuring consistency; consideration must also be given to the reason for the absence(s) as you may need to adapt your approach because of a need to handle it in a more sensitive way. For instance, a long-term absence due to a broken leg is quite different to a long-term absence due to depression, as we will find out in this hot topic.
Managing Mental Health Informally
Mental health does not automatically lead to sickness absence; sometimes being at work is important to an employee’s mental health, however they may still require support day to day. It can be a fine balance for an individual though, between being well enough to be at work whilst managing their condition and needing time away from work for their mental wellbeing.
If you need to support an employee day to day, here are some ways in which you can do so:
- If you offer an EAP, ensure you remind the employee about the service.
- You could have an allocated quiet area of the office, where people can use it to get time out.
- Use regular 121 meetings to ‘check in’ with your employee to see how they are getting on.
- Consider having Mental Health First Aider’s within the business, who can be a ‘go to’ person for anybody struggling in the workplace.
- Work with the employee to create a workplace wellness action plan (WAP). A WAP is a personalised, practical tool created specific to an employee to map out ways in which their mental health can be managed at work. A WAP is particularly helpful for an employee as part of a return-to-work process as it provides focus in their rehabilitation.
- Provide line management training on managing mental health.
- Provide access to meditation apps and other online resources
- Ensure you have supportive conversations, being mindful of the choice of words/phrases. Avoid using statements such as “pull yourself together”, “what’s the problem now”, instead, use language such as “what do you feel you can do to move forward with your wellbeing at work?” or “how can I help support you?”.
- Signpost and encourage professional support. Managers and HR are not medical experts and so there will be a limit as to the guidance and advice that can be given. Recognise the point at which you need to refer the employee to their own GP, specialist, or access information from approved sources, such as the NHS.
- Where the employee reports that work is a contributing factor, or even a cause of their mental health, listen carefully and proactively to help resolve and deal with the issues promptly. This may involve informal actions such as using the informal grievance process, implementing different working practices, or a more formal approach, by directing the employee to the formal grievance process.
It is important to note, that if the mental health condition is a disability or it is reasonably foreseeable that it might be considered as one, then there is a legal obligation to implement reasonable adjustments to support the condition in the workplace. A reasonable adjustment can be introduced at any stage in the management of the condition, informally or formally.
Managing Mental Health Formally
Short term absences are those which last for a few days at a time, anywhere from just one day, through to several weeks, although generally no more than one month in duration. An absence lasting more than one month is generally regarded as long-term sickness. It is common for there to be both a short-term as well as long term sickness process.
It is important to act consistently when managing sickness absences, which means your usual company procedures for handling absence levels must apply. This reduces the risk of treating people differently and therefore discrimination (or even unfair dismissal) claims. However, you can, and should, adapt the procedures to take account of any potential mental health condition. Whether these adaptions are a legal requirement will depend on whether the condition is deemed a disability under the Equality Act. However, even if the health issue is not considered a disability, it is often morally and ethically right to treat employee’s health sympathetically.
Whilst there will be different steps involved between the two processes, the reasonable adjustments that are identified through either of them will most likely be the same.
Where the formal procedures are required, here are some ways in which you can take a supportive approach to managing the employee’s mental ill health:
- Seek medical guidance on how best to support the mental health in the workplace. This can be either from their GP, an Occupational Health specialist, or a specialist they may be under the care of.
- Explore what reasonable adjustments may be needed to support their wellbeing at work and attendance. Remember, if the ill health is likely to be deemed a disability for the purpose of the Equality Act, then making all appropriate reasonable adjustments is a legal requirement (obtaining medical reports will assist in doing this).
- If the mental health condition is believed to be a disability, consider adjusting the company absence triggers in respect of this case, so it is tailored to the employee and their health needs. It is very possible that the employee is more likely to have sickness absence than an employee who does not have a disability. Adjusting the absence trigger system, i.e., the point at which a formal meeting is triggered, could be a reasonable adjustment because it can prevent the employee fast tracking through your processes because of their mental health.
- Consider researching the mental health condition to help you further understand the nature of it and to show your commitment in wanting to help, as well as helping you to prepare going into a short-term formal absence meeting. You can do this by reading official sources of information, such as the NHS and HSE websites. Whilst you are not expected to be medical experts, an employment tribunal would look favourably at the steps you take in trying to understand the condition to aid your decision making.
- Extending the right to be accompanied to allow an employee to bring a supporter. That person can act as a go between to ease communication between the employee and manager, particularly to help in rewording any unclear questions and help the employee in their understanding of the questions. This would be particularly helpful for example where the employee has autism.
The question of what is reasonable is not an easy one to answer; what is reasonable for one employer will be different to what is reasonable for another. An employment tribunal will consider several factors in determining what is reasonable for an employer, such as the size of the business, its financial resources and administrative set up. Therefore, when considering what is a reasonable adjustment consider:
- The extent to which the adjustment would ease the disadvantage suffered by the individual compared to a non-disabled individual
- The practicality of the adjustment
- The cost of making the adjustment
- The extent to which the adjustment would disrupt business activities
- Financial and other resources available to the business
- The availability of external financial or other assistance
- The nature and size of the business.
Examples of adaptations could include:
- Working hours – the numbers of hours worked and/or the way the hours are structured
- Periods of unpaid leave
- Dedicated quiet areas too allow hot desking during periods of stress
- Time out of the workplace to attend counselling relating to the mental health issue
- Support with managing workload
- Adjust absence triggers. It maybe they are more likely to have sickness absence than somebody who does not have a disability, and so adjusting the absence trigger system, i.e. the point at which a formal meeting is held, could be reasonable. This way the employee does not fast track through your processes quickly because of their mental health.
- Job redesign or redeployment (however this must be done with agreement, as care must be taken not to unilaterally change existing terms of employment).
Striking the right balance in supporting mental health whilst protecting the organisation is always difficult to do.
It is important to strike the right balance so that the organisation can continue to make sure that it is a profitable business but at the same time, it is necessary to ensure the organisation maintains a duty of care that is owed towards the employee and looks after its people.
Ultimately, it is about what is reasonable for the business and so if you decline putting in place a particular adjustment because it is believed that it is a detriment to the business, then you need to be prepared to explain and demonstrate the business’ need not to make the adjustment outweighs the employee’s need for the adjustment, should you have to justify your actions at a tribunal.