Managing mental health sickness absences as an employer
Understanding how to handle mental health sick days can be challenging for employers that have not dealt with this before, it should be handled with caution and adhere to regulations regarding this topic.
Find out our take on a query below…
“One of my employees has been off sick with stress for 10 months. His absence is now becoming a real problem for the business. I am not sure when he will be ready to return to work and how I go about discussing this with him. What are my options if he remains too ill to return to work? Please advise.”
Mental health conditions like depression are now common in the workplace. According to a 2020 Mind survey, one in six British workers is affected by anxiety, stress, or depression each year.
But something that is often asked is, does stress constitute a disability?
To understand this, an important consideration for employers when faced with any employee off sick with mental health issues, is whether their particular complaint would constitute a disability under the Equality Act 2010 (the Act), the definition of disability is as follows:
“A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”
This definition includes both mental and physical conditions, stress is not an illness on its own but can lead to anxiety or depression if not managed.
Defining Mental Health Disabilities
Depression can affect a person’s health and often needs treatment, serious depression may be classed as a disability, but not all cases meet this threshold. It is important to get medical evidence from the employee to understand the condition fully.
The other element of the definition required to establish disability refers to the impairment having a ‘substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’. The effect of an impairment is long-term if it has:
1. lasted for 12 months,
2. likely to last for at least 12 months or
3. is likely to last for the rest of their life.
Your employee has been off for 10 months. A medical report can help you decide if the condition is long-term and how it affects their daily activities, including work. This will show whether the absence meets the legal definition of disability.
If it does, careful management of the absence is essential.
What to Do While Your Employee Is Off Sick
Stay in touch with the employee during their absence, the level of contact will depend on their role and your business.
Appoint one person as their main contact and make sure contact is supportive but not intrusive. Keep clear records of all calls and meetings; managing mental health absences with care can help the employee return to work sooner.
Make sure all staff are treated equally, whether their absence is for physical or mental health reasons. If the absence is now causing problems for your business, arrange a formal meeting with the employee to discuss the reasons and possible return date.
Gather medical evidence as part of this process, meetings can be held at a neutral place or at the employee’s home if needed. Allow regular breaks and let the employee know they can bring a trade union representative or colleague.
Return to Work Process & Reasonable Adjustments
If the employee feels ready to return, hold a return to work meeting in a comfortable setting. Use this meeting to rebuild trust and support their return, this isn’t an investigation so ensure they feel comfortable.
Put a plan in place to help them settle back in without too much pressure, consider what adjustments at work might help.
If the employee has a disability, or you are unsure, you must consider reasonable adjustments to help them return, you should aim to speak with Occupational Health or their GP to decide what changes might help.
Meet with the employee to discuss their health and agree on adjustments, such as a phased return, flexible hours, or changing some duties. Try these adjustments for a set period and review them together.
Is Dismissal Ever an Option?
Dismissal for long-term absence should only be considered after a fair process.
Make sure you have enough medical evidence and have looked at all options, such as reasonable adjustments or redeployment. If the employee has been off for over a year with no clear return date, dismissal may be fair, but only if all steps have been followed.
If you do not follow a fair process or consider all options, the dismissal could be unfair and may lead to a discrimination claim, it is crucial you seek legal assistance if dismissal is your next step.
Managing long-term sickness absence is challenging, especially when it involves mental health. Employers must understand their duties under the Equality Act.
If you are unsure, speak to an employment lawyer at Orwins for advice on your situation.
