How to manage mental health related absences

Written by Alexandra Farmer on 12 July 2021

Mental health has long been recognised as a major challenge for employers. But in recent years, levels of stress, anxiety and depression have risen sharply – and workplaces are feeling the impact.

ONS figures show that mental health accounted for 15.9 million working days lost in 2020. CIPD research paints a similar picture, with 37% of employers reporting an increase in stress-related absence in the past year.

For employers, this creates a dual risk:
• sustained absence drives up costs and reduces productivity; and
• mental health absence carries significant legal risk if handled incorrectly.

With these cases becoming more frequent – and more complex – employers need clear processes, robust documentation and confidence in their legal approach.

A common scenario employers face

Consider a typical situation.

An employee has taken four periods of sickness absence over three months, ranging from one to 10 days, totalling 20 working days. The reasons given include low mood, stress, anxiety and depression.

This pattern immediately raises two commercial concerns: disruption to the business and the likelihood that the absence is linked to an ongoing mental health condition.

The first priority is to establish the facts. A line manager should arrange a private, supportive meeting to review the employee’s attendance record and understand what is driving the absences. This should include a discussion about the nature of the condition, how long it has been affecting them, and whether they are receiving any medical support.

At this stage, employers should consider obtaining medical input. This may involve asking for consent to contact the employee’s GP or referring them to Occupational Health (OH). Employees should also be reminded of any internal support available, such as an employee assistance programme or counselling services.

From a practical perspective, an OH report is often the most useful. Unlike a GP report, it is focused on workplace impact and can provide clear recommendations on adjustments and ongoing management.

Employers should also be mindful that employees have the right to see any medical report before it is shared.

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Understanding the legal risk

Any absence linked to mental health must be approached through the lens of the Equality Act 2010. An employee with a mental health condition may meet the legal definition of disability, triggering significant legal protections.

This matters because:

• there is no qualifying service requirement for discrimination claims; and
• compensation for disability discrimination is uncapped.

This all comes down to whether a sick employee can be classified as ‘disabled’. According to the law, this applies if:

The individual has a physical or mental impairment;
The impairment has an adverse effect on their ability to carry out normal day-to-day activities;
The effect is substantial; and
The effect is long-term.

If all of these criteria apply, the employee will be considered disabled in the eyes of the law.

In addition, the employer must consider the six main types of disability discrimination that are identified within the law. These are:

Direct discrimination;
Indirect discrimination;
Discrimination arising from disability;
The duty to make reasonable adjustments; and
Harassment.

Applying this to the scenario

Assume the employee consents to a GP report, which confirms that they are being treated for recurrent depression and anxiety and are fit to work with appropriate support. The GP also recommends further input from OH.

At this point, a referral to OH is strongly advisable. This allows the employer to identify reasonable adjustments, such as amended absence trigger points, temporary changes to duties or additional management support.

Any support plan should be documented, agreed with the employee and reviewed regularly. This not only supports the individual but also protects the employer if decisions are later challenged.

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When does dismissal become an option?

Frequent short-term absence should initially be managed under the organisation’s absence management procedure. Dismissal is not usually appropriate unless the situation escalates into long-term absence or there is clear medical evidence that attendance will not improve.

There is no fixed timescale set out in law. Decisions depend on the medical evidence, the impact on the business, and whether reasonable adjustments have been fully explored.

As a general guide, dismissal for capability is unlikely to be considered reasonable until an employee has been absent for around six months, unless earlier medical evidence confirms that a return is not foreseeable.

Employers must also check whether the employee benefits from permanent health insurance or ill-health retirement options, which may affect how the case is handled.

If dismissal becomes a realistic outcome, a fair medical capability process is essential. This includes:

written notice of meetings;
clear warning that dismissal is a possible outcome;
sharing all medical evidence relied upon; and
giving the employee the opportunity to comment.

If employment is terminated, contractual notice must be paid.

Reduce risk. Protect your business. Get expert support.

Mental health-related absence is one of the most legally sensitive areas employers deal with. Getting it wrong can be costly - financially and reputationally.

Our Employment Law specialists support employers every day with complex absence and capability cases. We provide clear, commercial advice to help you manage risk, support your workforce and take defensible decisions with confidence. Where needed, we can also coordinate referrals to trusted occupational health partners.

To discuss your specific situation and find out more about our fixed-fee support, call 0345 226 8393 or request your free consultation using the button below.