Employers must be alert to mental health problems in the workplace
14 I 10 I 09
Mental health issues are on the
increase generally and are certainly more prevalent in the
workplace than in previous years with studies showing that as many
1 in 6 people are suffering from a mental health problem at any
given time. The UK government estimates that mental health problems
are costing the economy approximately £93 billion every year
through absence and inefficient working.
Employers often struggle
to recognise that there may be such issues in the first place as
symptoms can be hard to spot but even if they do, they are unsure
how to deal with them effectively. Where things do go wrong, there
can be a great deal of management time involved in trying to
resolve matters, potential liability for a number of claims and
further damage to the employees state of health; not an ideal
outcome for anyone.
The majority of issues in
practice arise from stress related illnesses. These can impact on
an employee’s ability to do their job effectively and in some cases
lead to periods of absence, both of which are damaging for the
employer and employee.
In both cases, the
employer can take informal or formal action under their capability
or absence policies. Informal action is advisable in the first
instance as once formal procedures are embarked upon positions
often become entrenched or the employee’s condition worsens. Where
there are absences for any reason, the best advice to employers is
to act quickly, the longer an employee is absent the prospects of
the employee ever returning dramatically decrease. Early warning
signs include:
- Increased absence (and mention of 'stress' on sick notes)
- Over performance (i.e. pushing themselves too hard)
Where there are stress
related problems, consider offering some counselling to assist the
employee. Also, if workplace issues are causing the stress or
contributing to it you will need to consider what can be done to
lessen this. For example, further training, resource or changing
duties (perhaps temporarily) may assist.
Probably the most common
legal claims that may arise are claims for both unfair dismissal
and disability discrimination following a dismissal for long term
ill health absence. Whilst not every stress related problem will by
any means be a disability, recent amendments to the Disability
Discrimination Act mean that the definition of “mental impairment”
has been considerably widened so that the threshold of what
constitutes a disability is much lower than previously the case.
Most cases therefore focus on whether or not the reason for the
dismissal is linked to the disability. Current case law makes this
difficult as the employee’s treatment is compared to an employee
absent for long term ill health and who does not have a disability.
In practice this makes it impossible for such claims to
succeed.
However, if an employee
is disabled, employers have a positive duty to make “reasonable
adjustments”. In this context reasonable adjustments may be
agreeing to a phased return to work, temporary or permanent change
of duties or redeployment. Where an employer fails to make such
adjustments and this prevents an employee from returning to work
liability can arise.
Obviously the best way to
reduce the likelihood of mental health issues in the workplace is
to take pre-emptive action. Improving the physical working
environment of your workplace can be very important. Bad lighting,
noise, poorly designed equipment and exposure to hazards can all
trigger stress which in turn can lead to mental illness. The
culture of your workplace is equally important. Encouraging
flexible working and discouraging a long hours culture can reduce
stress levels and ensuring you stay on top of any potential
bullying or harassment cases is crucial.
Notes:
Hugh James is Wales’
largest independent law firm with 40 partners and 500 staff.
In the last 12 months alone, Hugh James has opened its first office
in London, developed a strategic alliance in Scandanavia with top
Finnish law firm Roschier and won a string of blue-chip clients
including clients include the Welsh Assembly Government, The Royal
Bank of Scotland, the Environment Agency and the Welsh Rugby
Union.
For further information contact:
Joe Purcell
Business Development Manager
E joe.purcell@hughjames.com
T 029 2039 1061
