Mental health encompasses such a wide range of complex topics, employers are often concerned and uncertain about what they should be doing to manage and support employees when a mental health issue arises. We offer some practical suggestions to help employers deal with tricky mental health issues.
Identifying the Issue
According to Government statistics, one in four of us will experience a mental health problem at some point during our lives. It is therefore not surprising that employers are becoming increasingly aware of mental health issues in the workplace. However, accurately identifying mental health issues in practice can still be a significant obstacle for employers to overcome.
It is not uncommon for employees to conceal a pre-existing mental health condition because they are concerned about the stigma that may attach to the condition. There are also occasions where an employee may not themselves be aware that they are suffering from mental health issues. Employers should therefore be alert to early warning signs that someone may be experiencing mental health struggles in the workplace. For example, if an employee starts behaving out of character, their performance suddenly deteriorates, or their sickness absences become more frequent (for no obvious reason), employers should be closely monitoring patterns of behaviour and/or absence.
If there is a pattern of behaviour and/or absence which is causing concern, employers should then start to consider whether there is an underlying cause and what they can do to support the employee before the issue escalates. For example, it may be worth informing the employee of any employee assistance programme which is available. Employers may also wish to promote a culture whereby employees are encouraged to speak openly and frankly about any stressors affecting them both inside and outside of the workplace.
Work Related Issues
Many employers have been in a situation whereby the first time they become aware of a mental health issue is when they receive a note from the employee’s GP, which simply states “Work related stress”.
Any asserted link between work and mental health issues can leave employers uncertain about how to engage with the employee so as not to give rise to any criticisms. However, failure to maintain regular communications with an employee (directly or through a third party), who is off work because of mental illness, is likely to lead to the relationship significantly deteriorating.
It is also important to try to establish the cause of the mental health issue as soon as possible. If the issue has arisen because of an excessive workload, performance pressures, or a particular individual at work (be it a colleague or line manager), it may be within the employer’s control to resolve the problem by re-distributing work or moving the employee away from a harmful work environment.
Another common problem for employers is mental health issues that are raised after a formal capability or disciplinary process has been instigated. Often, it is difficult to ascertain which came first – did the mental health issue cause the poor performance/conduct or did the formal process cause the mental health issue?
In all of the above scenarios, employers should consider obtaining an independent medical report in respect of the diagnosis, cause and prognosis of the mental health issue at an early stage.
Medical Reports
A very common pitfall encountered by employers is that they do not ask questions that are comprehensive and specific enough of the medical professional they instruct to provide a medical report. It can be tempting for employers to use standard generic questions when instructing experts but there is no one size fits all when it comes to mental illness. We often see questions such as “What has caused the stress?” being met with a vague response along the lines of “The stress has been caused by work related issues”. It is therefore important to carefully consider what questions are likely to lead to a report which actually allow the employer to assess the necessary next steps and course of action.
Employers should also consider the complexity and severity of the mental health issue and whether an expert in a particular mental health field should be instructed from the outset rather than a general occupational health provider (especially if the mental health issue is likely to be considered a disability).
Sick Pay and Permanent Health Insurance
If an employee is off work sick for a prolonged period, there is likely to be significant financial impact for both parties.
If an employer has a generous sick pay policy, a prolonged absence could be costly for an employer. Conversely, if an employer does not offer enhanced sick pay, they may find an employee who is not really well enough to work cannot afford to take time off.
In both of the above scenarios, employers need to carefully consider whether or not the employee is genuinely fit for work. In cases of long-term sickness absences, it is prudent for employers to obtain periodic reports from a medical professional (ideally, an expert in the particular mental health field) in respect of the likely duration of the absence. Equally, employers may wish to seek medical reassurance before they agree a return to work, if an employee states they are fit for work but there are doubts about their mental health state.
Often employers offer permanent health insurance or income protection insurance which may provide financial cover for employees suffering from a mental health issue. However, the application process will need to be started by the employer in good time.
Legal Risks
If an employer does not manage a mental health issue correctly, depending on the nature and likely duration of the issue, this could give rise to a disability discrimination claim and/or a constructive unfair dismissal claim and/or an unfair dismissal claim. It is therefore important that employers carefully consider all of the medical evidence available as well as any suggested reasonable adjustments that could be put in place to support the employee. Adjustments can typically include a phased return to work, flexible working and time off for medical appointments. With regards to reasonable adjustments, employers should again be thinking about the level of detail they need to obtain from the medical professionals.
Conclusion
In summary, whilst employers cannot be expected to diagnose mental health issues, they should be considering advice from a medical health professional at the earliest possible opportunity to allow any reasonable adjustments to be put in place.
Employers can also help to support employees by incorporating and maintaining specialist training, appropriate policies and a healthy work culture.