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.
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
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.
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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