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Question: 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 such as depression are now a common problem facing employees. A survey conducted by Mind published in June 2020 found that mental health problems such as anxiety, stress and depression affect one in six British workers each year.
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 covers both mental and physical impairments. Stress in itself is not an illness but a symptom that can lead to feelings of anxiety or depression. Over time, if not addressed stress can cause serious illness. Depression affects a person’s physical state, mood, and thought process and is an illness that often requires treatment. Employment Tribunals regularly hold that serious depression is capable of constituting a disability. Although, in many cases, employees fail to establish that their depression is severe enough to constitute a disability. In J v DLA Piper UK LLP UKEAT/0263/09 the Employment Appeals Tribunal (EAT) said when looking at cases of depression and impairment, tribunals need to be aware of the distinction between clinical depression and a reaction to adverse circumstances. While both can produce similar symptoms only the first should be recognised as a disability. In the circumstances, you have described it is always advisable for employers to obtain medical evidence from the employee to give you a clearer understanding of the nature and extent of the condition.
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:
At present, your employee has been off for 10 months and obtaining a medical report should be able to assist you in determining whether this impairment is long-term. The medical report will also be helpful in obtaining an understanding of whether the condition has a substantial adverse effect on the employee’s ability to carry out normal day-to-day activities; this includes the effect on his ability to work. Having considered all of these elements in the light of medical evidence this should give you an indication of whether the sickness fulfils the test of disability set out in the Act. If it does then it is even more important to ensure that the sickness absence is carefully managed.
Keep in contact with the employee. The amount of contact will normally depend on the nature of the employee’s role and the size of the business. There should be a careful balance between concern for the employee’s wellbeing and ensuring that the employee does not feel pressured to come back to work. It is best to appoint one person to act as their regular point of contact. Contact should not be too intrusive or overbearing. All contact with employees who are off sick should be well documented by managers. Keep a record of all telephone calls and meetings. Dealing with employees with mental health issues requires a greater degree of sensitivity and understanding. If the period of sickness absence is managed well, then this is often indicative of how quickly an employee will be able to return to work.
It should also be made clear to all involved that everyone is treated equally regardless of whether the sickness’s absence relates to a physical or mental illness. However, it appears you have now reached the point when the absence is presenting an unacceptable level of disruption to your business. Consider holding a formal meeting with the employee to establish in more detail the reason for the absence and when the employee is likely to return to work. In investigating the reason for the absence, should involve obtaining medical evidence; this process should take place over a few formal meetings. Further meetings should be held to discuss the medical evidence. If any of these meetings are difficult for the employee to attend then they can be held at the employee’s home (with their consent) or at a neutral venue. Make sure there is provision for them to take regular breaks during the meetings and ensure the employee is aware they have a statutory right to be accompanied by a trade union representative or a fellow worker at these meetings.
In the event that the employee indicates, that they feel ready to return to work then you should conduct a return to work interview to reintroduce them back to work. This could take place in a neutral comfortable venue. This meeting is vital to build up trust and engagement with the employee and support them in their smooth return to work. Put a plan in place to assist in their return to ensure they are not too pressurised or overwhelmed. An important part of that plan must be consideration of what workplace adjustments can be made.
If the employee does have a disability within the meaning of the Act (and probably even if you are not sure if they have a disability) then you are under a duty to make reasonable adjustments to any provision, criteria or practice (PCP) you operate that would place the employee at a substantial disadvantage compared with a non-disabled person. Discussions with Occupational Health or the employee’s GP could assist in determining what reasonable adjustments might be practical. Have a meeting with the employee upon their return to work to clarify your understanding of their current state of health and talk about the adjustments that are being put in place to facilitate their return to work. Making such adjustments would go to show you have behaved reasonably in the event of any future claims. Examples of possible adjustments include a phased return to work, varied start and finish times, and reallocation of duties to other staff. It is always a good idea to agree on any adjustments with the employee for a trial period and then review them after a time.
Any dismissal for long-term absence must be carefully considered and the decision should only be made following a fair procedure and be justified in order to avoid liability. Consideration should be given to whether you have obtained sufficient medical evidence, whether the employee is fit to return to work with reasonable adjustments in place, whether as the employer, you are at all responsible for the employer’s ill health, and whether there are any alternatives to dismissal such as redeployment to a different role or the possibility of making a claim on a permanent health insurance scheme (PHI). Where an employee has been absent on sick leave for more than a year and there is no certainty as to their return day, dismissal may be fair. The case of O’Brian v Bolton St Catherine’s Academy  EWCA Civ145 states – “there comes a time when an employer is entitled to some finality.”
However, the failure to follow a fair procedure and consider these options may render the dismissal unfair and could potentially give rise to a disability discrimination claim.
Dealing with employees who are on long-term sickness absence is always difficult but when the reason for the absence relates to a mental health issue, employers need to have a clear understanding of their obligations and responsibilities under the Equality Act.
If in any doubt discuss your individual situation with an employment lawyer. They will be able to give you advice on how to proceed, email or call BBS Law today and speak to our experienced employment law team.