How to manage mental health related absences

Written by Alexandra Farmer on 12 July 2021

Though mental health has long been considered one of the greatest epidemics of our time, the events of the past few years have seen depression, stress and anxiety soar to record levels.

Naturally, residual effects have been seen in the workplace, with ONS data showing that mental health in the UK accounted for 15.9 million days of absence in 2020. A survey conducted by the CIPD presents a similar picture, with 37% of respondents noting that stress-related absence had increased during the past year.

Where the employer is concerned, this boils down to two main concerns: not only does this uptick in absence equate to a costly loss of productivity, but perhaps more importantly, absences of this nature are notoriously tricky to deal with due to their intrinsic legal sensitivity.

With levels of such absences continuing to rise and showing no signs of diminishing, now is the time for employers to arm themselves with the knowledge and protocols to tackle these scenarios with fairly and compliantly.

An example scenario

Given the potential complexity of mental health related absences, let’s first consider a hypothetical scenario to help offer some context.

Imagine you have an employee who, in the past three months, has taken four separate periods of absence, ranging from one day to 10 days at a time. In total, these periods amount to 20 working days lost.

During this time, the employee has given a range of reasons for their absence, including low mood, stress, anxiety and depression. Naturally, these reasons suggest that they suffer from ongoing mental illness.

The first step here will be for the line manager to obtain more information about their condition. This may be contained within personnel files, but if not, don’t worry – the detail is likely to come directly from the employee.

With this in mind, a line manager would need to set up a private meeting with the individual to discuss their attendance record. They should be asked about the history and severity of their conditions, and whether they are currently receiving any medical support outside of work.

It may be appropriate to ask for the individual’s consent to write to their GP for further information about their condition or, alternatively, ask if they would be happy to see an Occupational Health (OH) practitioner. The line manager should then signpost them to any other support options available, such as an Employee Assistance Programme or a counselling service.

In terms of a medical report, that can be from either a GP or an OH professional. A GP may not, however, be willing to advise on adjustments, whereas an OH report will naturally be more workplace-centric.

Do keep in mind that not all employees will feel comfortable with an employer approaching their GP or attending an OH appointment. Let them know that they have the right to see the report before it is released.

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What are the legal risks?

In dealing with any such scenario, an employer must first consider one key fact above all: an individual who has been absent from work by reason of illness may be protected by disability discrimination law under the Equality Act 2010.

This detail could potentially be crucial. Where disability is concerned, there is no minimum qualifying period for discrimination claims and no upper limit on compensation, so compliance with the relevant requirements of the act is simply not optional.

But of course, 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.

Let’s consider this legal guidance in the context of the scenario given above, supposing that the employee did provide consent for the employer to approach the GP.

The GP’s report confirms that:

  • The employee is currently prescribed citalopram for depression and anxiety, which she has been taking on and off over a period of a few years.
  • They should be fit to work on the basis of the information provided but will need support in the workplace as they suffer from recurrent depression.
  • The employer should seek an OH report for further recommendations on how best to support the individual in the workplace.

At this stage, we would recommend that the line manager seeks consent to refer the employee to OH for a full assessment. This would help to identify any reasonable adjustments, such as amending the absence policy’s trigger points. In the meantime, the agreed support plan can continue, but must be regularly reviewed and adjusted as required.

How long before dismissal is an option?

As the scenario outlined above involves frequent, short-term absences, the employer would need to manage this persistent absenteeism in line with their absence management process. Only once this becomes a long-term problem – for example, the employee is subsequently signed off as unfit for work and has been off for a matter of months – would dismissal be considered.

While the most common question in this scenario is how long an employee has to be absent, there are unfortunately no prescribed time periods set out in the law – it depends on a series of factors.

Unless early medical evidence is clear that a return to work will not be possible for many months or even years, a reasonable rule of thumb may be to not consider dismissal as a potential outcome until the six-month period.

Medical evidence here is absolutely crucial. You can get a report from the employee’s GP or OH, but often with employees on long-term sick leave, the prognosis will be unclear, and it may not be possible to give a return to work date.

It must also be ascertained whether the employee has the benefit of permanent health insurance. In this scenario, it is likely that the employer would have to leave them employed and in receipt of that insurance.

It may also be worth assessing whether the individual is entitled to ill-health early retirement, as this may be an avenue to avoid outright capability dismissal.

But if no adjustments or arrangements can be made and it is unclear when or if the employee will be able to return to work, then the next stage will be to progress with a medical capability procedure, which could result in termination of the employee’s employment.

The employee should be invited to a meeting in writing and warned that dismissal is a possible outcome. The invite letter should also enclose all of the relevant documentation you will be relying on, and the meeting should discuss the history of absence, the details of the latest medical evidence, and whether the individual agrees with the findings of the GP of OH. If an employee is dismissed for medical capability, they would be entitled to be served notice as per their contract of employment.

Complex absence case? Lean on the experts

Managing complex, long-term absences and more sensitive situations involving mental health and disability can be daunting, not least because of the legal risks involved. 

If you’re concerned about the consequences of getting it wrong, our Employment Law experts can guide you through the process step by step to help you facilitate a return to work or, should it come to it, ensure you approach medical capability dismissal fairly and compliantly. If required, we can also put you in touch with our occupational health partners to ensure a smooth, streamlined process.

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.

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