Research by AXA PPP revealed that employees are much more likely to lie to their boss about the reason for being off sick if the cause of sickness is related to mental rather than to physical health. Similarly, managers were found to be more likely to accept a physical illness as a good reason not to attend work, than a mental health issue.
Research by the mental health charity Time-to-Change similarly found that 95% of employees suffering from stress lied about the reason for their absence. The result must be that employers do not know how their workforce’s mental health is impacting on workplace absence rates; and cannot then make the reasonable adjustments that might help the employee suffering from a mental health issue to participate in the workplace to the fullest extent possible.
An employer is under a duty to make reasonable adjustments unless the employer did not know, or could not reasonably be expected to know, about the person’s disability. Based on an employee’s behaviour, or absence, an employer may suspect that he/she is suffering from a physical or mental health condition which as a long term and substantial effect on their day to day activities. If so, then the employer would be well advised to:
- speak to the employee to ascertain the nature of any condition;
- refer the employee for an occupational health assessment if appropriate; and
- make reasonable adjustments if necessary.
Given all of this, employers would be forgiven for taking a fairly cautious approach when an employee discloses that they are suffering from, for example, stress. However, a recent case may be useful in helping employers consider whether or not an employee suffering from stress is actually disabled or not.
In Herry v Dudley Metropolitan Council the Claimant, a design and technology teacher, went off sick in 2011 with a fractured ankle. He had been involved in protracted Employment Tribunal litigation with his employer (a school) for a number of years and eventually his claims were heard in hearings in 2012 and 2014, lasting 39 days. He lost his case.
From 2013 onwards, Mr Herry’s sick notes cited ‘stress’ or ‘workplace stress’ as the reason for his absence and in November 2014, his sick note cited depression as a result of losing his case. His employer invited him to return to work but in 2015 Mr Herry’s medical certificate stated that he felt that the behaviour of certain individuals at the school was stopping him from returning to school and was causing his stress. Mr Herry decided it was time to bring another claim for disability discrimination.
The Employment Tribunal had to consider whether Mr Herry was in fact disabled. However, Mr Herry had provided little or no evidence about how his stress affected his ability to carry out day to day activities and the Tribunal decided that his stress was largely due to his unhappiness about his perceived unfair treatment at work and a ‘reaction to life events’.
Mr Herry appealed, saying that the impact of the disability on him was that he could no longer teach, even though the school had obtained an occupational report stating that he was fit to perform his role but that outstanding (non-medical) issues in the workplace were causing him stress.
On appeal, the court considered whether Mr Herry had been suffering from a mental illness (which could be a disability), or a short term reaction to adverse circumstances (which would not be a disability). They thought that Mr Herry fell into the latter category and confirmed that unhappiness with a decision or a colleague and a tendency to nurse grievances or refuse to compromise would not in themselves amount to mental impairments.
In this situation, the appeal court thought that there was no obligation to find that Mr Herry was suffering from a mental impairment. So Mr Herry lost again, which may not have helped his stress levels.
So what can we take from this? When an employee states that they are suffering from stress, this may amount to a disability but equally it may not. It is worth exploring whether the stress is actually simply unhappiness with a workplace decision or an inability to accept a decision; and occupational health advice can be invaluable in assisting to answer that question and in considering how to respond.
At our workshop on 22 March 2017, we explored how to manage employees with mental health issues, which included delving into the legal aspects of mental health management in the workplace, in particular looking at reasonable adjustments around mental health illnesses, and how to manage capability, conduct and grievance procedures when mental health issues are raised.