Mental Health related absence continues to rise

We recently reported on the latest HSE stats which revealed that mental health in the workplace now accounts for 52% of all work-related illnesses, with cases rising by 24% in the last 12 months. Mental health conditions remain the primary driver of work-related ill health, with 964,000 workers reporting stress, depression or anxiety caused or made worse by work in 2024/25.

In keeping with this trend, the BBC has today reported ^₍₁₎  that hundreds of GP’s have reported having never refused to sign a sick note for a patient complaining of mental health issues. The BBC sent a questionnaire to more than 5,000 GPs in England asking if they had ever denied a sick note to someone who had requested one because of their mental health. Of the 752 GPs who replied, 540 said they had never refused such a request, while 162 responded that they had turned at least one down. A smaller number - 50 - said they would prefer not to say.

The BBC reports that fit notes do not have to specify why a person is being signed off, and 72% of fit notes do not give a reason. However, more than 956,000 notes last year cited mental health and behavioural disorders as the underlying reason, far exceeding any other condition.

This comes at a time when due to increasing use of modern technology, sick notes no longer necessarily require a GP appointment, with many issued following an online request.

GP concerns about the current system

When responding to the BBC’s questionnaire, many GPs reported how frustrated they were with the current system, saying the provision of fit notes should not be part of GPs' jobs, with one saying "GPs should not be gatekeepers of fitness to work." There have been calls for the system to change by some bodies, such as the Centre for Social Justice, which has recommended fit note responsibility be moved away from ‘overstretched’ GPs and into a new Work and Health Service and ‘embed employment and occupational health support at the point of sign-off’.

What does this mean for civil litigation?

With the volume of stress claims expected to rise in light of this upward trend, and the upcoming changes introduced by the Employments Rights Act 2025, evidence of mental health related absence is likely to be readily available as part of the evidential picture. Claimants rely heavily on sick notes to demonstrate their employer becoming aware that their mental health was declining. An employer’s response to a sick note, or the associated absence from work, will undoubtedly be scrutinised.

That said, a sick note on its own does not necessarily give rise to foreseeability of imminent psychiatric harm. The case of T v W [2022] CSOH 44, involved a primary school teacher who alleged psychiatric injuries caused by the Defendant’s handling of a competency process. The Claimant relied upon various fit notes citing “anx/dep” and “work related stress and anxiety” amongst others, as part of her case in support of foreseeability of injury. The Judge provided some very helpful comments on the sick notes in his judgment:

Whilst the context will be key in each individual case, with the likelihood of more and more sick notes citing mental health issues forming part of the evidential picture, it is important to remember that a sick note alone will not necessarily put a Defendant on notice of a risk of foreseeable harm. That said, now is the time for employers to ensure robust systems are in place for managing employee return to work processes.

References

(1) BBC News | Hundreds of GPs tell BBC they have never refused a fit note for mental health concerns