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Enough to drive you insane!

» Posted on: 12 June 2007
» Posted by: Oliver McCann
» Service area: Employment

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Sickness absence is a niggly issue at the best of times, but even more so when it is on grounds of depression, stress or anxiety. A survey of 30,000 workers performed by the Chartered Institute of Personnel and Development (CIPD) found that mental ill health is now the second largest cause of time lost to sickness, muscle related problems such as bad backs coming first.

The CIPD annual survey of July 2006 revealed that stress is the number one reason for absence in non manual workers with a third of workers being off with stress.

The survey also found that workload/volume was the top cause for stress followed by management style and lastly restructures. This suggests that the fault for such absences are work related meaning that employers may well be opening themselves up for liability either pursuant to a stress at work claim, a bullying claim or constructive dismissal.

Legal Issues
What makes absence on grounds of depression or stress an even greater hot potato is the inter relationship this illness may have with the Disability Discrimination Act 1995 (as amended) (“DDA”)

A disability can cover a “mental impairment” but the requirement for this to be a clinically well recognised mental illness was removed in December 2005 thereby increasing the prospects of those suffering from anxiety, clinical depression or ongoing recurring episodes of depression being covered. To be covered by the Act it is still necessary to satisfy the remaining requirements that make up the basic definition of a disability ie. a substantial and long term adverse effect on the person’s ability to carry out normal day-to-day activities.

Note that long term maybe satisfied by a condition that is likely to be recurring regardless of the fact that its effects have temporarily ceased. This is a particularly common feature in mental illness so be warned that a cessation of the condition may not mean the Act no longer plays a part.

Reasonable Adjustments
Assuming such conditions do happened to be covered then the onus on you is to consider making reasonable adjustments which may include phased returns to work, removing some of the workload, part time work, flexible hours, increased supervision, provision of assistance and so on – anything that may help an employee return to work and continue in their position should be considered.

So no longer is an absence on grounds of anxiety or depression simply a capability issue – it may also be a disability issue. A failure to consider this will result in liability under the Act.

Another point to consider – can you fairly terminate an employee’s employment on grounds of long term ill health because they have been absent on grounds of work related stress?

Well if you have got to this stage it is because the employee has not taken the decision to resign and claim constructive unfair dismissal or bring a stress at work claim on the grounds that you have failed to safeguard their health. If you do dismiss then there are presently conflicting cases to determine the point. One case suggested that responsibility for the employee’s illness is irrelevant in an incapacity dismissal whereas another rejected this proposition. In a recent decision (Royal Bank of Scotland v McAdie) it was held that culpability for the employee’s absence is a factor to be taken into consideration but it should not preclude an employer from ever dismissing.

It was suggested that the employer should go the “extra mile” in finding alternative employment or put up with a longer period of sickness absence than would otherwise be reasonable.

Steps to take
The Health and Safety Executive recommends that all Employers carry out a risk assessment of an individual’s job/role. Their website contains a vast amount of useful information www.hse.gov.uk stress. This would be good practise to safeguard your business from a stress at work claim anyway.

Consider also the following preventative steps:-

  • Introducing a policy on stress (ensuring an ability on an individual to raise concerns)
  • Implement stress management training
  • Ensure you have a bullying and harassment policy
  • Hold regular staff appraisals – don’t be afraid to ask whether they are coping with the workload
  • Offer a counselling service with access to treatment – this has been held to go along way to providing a defence to a stress at work claim. It ,ay also constitute a reasonable adjustment for the purposes of the DDA 1995
  • Consider flexible working – the difficulties of balancing work life with home life (especially for women) is a known cause of stress at work

If matters reach a stage where you need to invoke the capability procedure and need to consider dismissal take advice!

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