Mental Health - The Great Taboo

If an employee breaks a leg then usually there is a collection, a card and with a fairwind a box of chocolates is often despatched, even on some occasions to the bedside! In the event that at individual has a nervous breakdown the response is quite different. Fellow staff often avoid discussing the issue with the individual or go as far as to ostracise them. Line managers, often subliminally, make a mental note that the individual may not be able to cope with stressful situations and therefore they are overlooked for promotion opportunities.

A recent report by the Shaw Trust has indicated that:-

• The cost of mental ill health problems to businesses is as much as £9 billion per annum and there may be further unknown costs in terms of lost time and productivity.
• Most companies do not have an effective policy in place to deal with employees mental health issues and are not aware of the legal position.
• Most companies are not proactive in this particular field.
• However, rather interestingly, the majority of directors believe industry needs more significant support in dealing with mental health issues in the work place.

This echoes a survey prepared by the CIPD in late 2005 (the "CIPD Survey"). The CIPD Survey report found that almost 40% of employers reported a rise in stress related absence in 2004/2005. Stress represented the leading cause of non manual workers sick leave. Again, it was interesting that the CIPD Survey found that the most important obstacle preventing employers from tackling work place stress was that it is not a clearly defined condition and therefore was difficult to identify.

The difficulty of identifying what stress represents or how it can be defined has also caused problems for applicants seeking to bring claims for ill-health related dismissals or claims under disability discrimination legislation. The Disability Discrimination Act 1995 (the "DDA") only affords protection to those individuals who can satisfy the statutory test, namely that they have a mental/physical impairment which has a substantial adverse effect on their ability to perform normal day to day activities. In the event that an individual cannot satisfy the definition (which is often the case with stress related conditions as it may not be long term or, have a substantial effect on normal day to day activities,) then any claim under the DDA will fail.

When the DDA was being reviewed in 2004, mental health pressure groups pushed the argument that the requirement that a mental impairment must be long term should be abolished or the period of time of infliction should be reduced. The government rejected this proposal. It was believed that this would broaden the scope of those individuals who could bring claims and therefore would place an increased burden on employers.

However, the problem is not going to go away for employers. If an individual cannot successfully bring a claim under the DDA then they may be in a position to being a claim for negligence. The recent case of Tracey Ann Daw v Intel Corporation (UK) Limited 2006 EWHC1097 (QB) involved an employee who had complained about her excessive work load. She wrote an e-mail stating that her work load was stressing her out, that she suffered from mood swings and that she had "been there twice before". The Courts held that the employer was negligent in failing to take steps to obviate the risk of an employee, who complained of being overworked and stressed and who had a history of depression, from suffering from a nervous breakdown.

So what can employers do?  

• The most productive way of dealing with the situation is to be proactive. There should be a regular review of employees job descriptions/work duties/areas of responsibility to ensure that their skills matrix actually meets their job duties and, that they are receiving the relevant level of support.
• Although, this can become somewhat of a paper exercise, it will enable HR practitioners to identify those individuals who may be having difficulties. Individuals should be encouraged (if they are not satisfied) to utilise the grievance procedure in order to articulate their concerns. HR managers traditionally see the grievance procedure as related to pay/condition issues, but increasingly they are being used by dissatisfied employees. Given the fact that great emphasis is placed on using grievance procedures under the new statutory procedures then it is certainly a productive route to enable employers to identify areas of concern.
• There should be regular communication with members of staff indicating that if they do have any problems then they should speak to their line manager.
• Obviously, if an issue is raised then it should be dealt with in a prompt, practical and sensible manner.
• A more reactive approach would be to introduce return to work interviews. Again, this would provide a trigger point for areas of concern to be discussed and perhaps weed out those individuals who are trying to use stress as an excuse for non attendance.
• A number of employers are now starting to use attendance incentives. Some public sector employers are even offering free holidays and a car for good attendance. However, this may not be something which all employers want to consider!
• If an individual is suffering from either a short term/long term absence because of stress then this should be identified and dealt with by an employer. We advise that the employer seeks medical advice from an independent expert practitioner to enable a diagnosis/prognosis to take place. Reliance on occupational health may also be of assistance.
• If there are issues raised in the report then they should be identified with the employee (after they have been informed of their right to have access to the report if the report is prepared by the medical practitioner who is treating the employee). Then consideration should be given as to how to facilitate the individual's return to work. A return to work programme may include enabling the individual to work from home for a short period of time; flexi time or sharing job duties.
• It is imperative that employers document all steps taken and or agreed with individual employees so there is a paper trail of the decision making process

Please contact David Gibson for more information on 0191 233 9762.

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