Mental Health Issues at Work & Absence Management
Date: 27th February 2019 | Categories: Employment law
Frequently employers find themselves in a position where an employee is absent from work due to mental health issues and the employer is left unsure as to how to handle the absence and whether they should contact the employee. Often, both employees and employers are under the misconception that employers are not permitted to contact an absent employee when the opposite is true. From an HR perspective reasonable contact with an employee on sick leave is often encouraged. Managing the absence sensitively and having an awareness that mental health issues at work may be a factor in the employee’s own behaviour is key to employers demonstrating that they have acted reasonably in managing any absence.
Background to a recent case
The case of Flemming v East of England Ambulance Services NHS Trust highlights the importance of employers taking the correct steps to appropriately manage absence due to mental health issues. Mr Flemming was employed by the Trust from 2009 as a vehicle technician. In April 2012 Mr Flemming had an argument with his line manager, following which he suffered a heart attack. In July 2012 Occupational Health declared him fit for work. Mr Flemming and his line manager engaged in internal mediation, however this was not successful. The tribunal heard evidence that Mr Flemming was given an ultimatum to shake hands with his accuser before he was permitted to return to work. Mr Flemming was again admitted to hospital. He reported that neither the management team or HR were in touch to enquire about his health and well-being and he was upset by this.
Absence Management Failings
Between October and December 2012 Mr Flemming made two attempts to return to work but his return was not sustained and after a further incident with his line manager on 5 December 2012, Mr Flemming again reported as absent from work and on this occasion he did not return. Mr Flemming’s fit note stated, “panic disorder, awaiting resolution of aggravation at work” and a diagnosis of depression followed. In May 2013 options to include ill health retirement and termination of the contract on the grounds of capability were considered, but no decision was made. A further Occupational Health report in December 2013 stated that current clinical descriptions were inadequate and that Mr Flemming was suffering from post-traumatic embitterment disorder. The OH practitioner described the symptoms as “chronic, hard to treat and [can] often result in disability in almost all areas of life”.
Throughout 2014 and 2015 various welfare meetings were scheduled, many of which were not attended by the employee. In June 2015 Mr Flemming wrote to HR accusing the organisation of corporate bullying on such a scale he had considered ending it all. The response to Mr Flemming from HR read, “I appreciate you may have mental health problems, but this letter is not acceptable. In future do not write to anyone else in the Trust except me. If you continue to write such letters we will refer them to our solicitors”. Mr Flemming was eventually dismissed in November 2015 on the grounds of gross misconduct following allegations of failure to follow reasonable management instructions.
In its judgement, the tribunal recognised that the employee had been difficult to manage, failed to follow instruction and would at times simply not-cooperate with what had been genuine attempts to resolve the employment difficulties. However they went on to comment that the Trust had failed to take a holistic approach in managing the absence. Nine Occupational Health reports had been received, yet the tribunal’s view was that the contents or recommendations were not adequately dealt with. The tribunal further regarded the response from HR to Mr Flemming’s suggestion that he was contemplating suicide to be ‘appalling’ and ‘demonstrated no insight at all into the likely impact on a person contemplating suicide’. The tribunal were also critical of the Trust’s failure to consider outside mediation or to assist in an application for ill health retirement.
The tribunal upheld claims of unfair dismissal and discrimination arising from disability. A hearing to consider compensation was set for this month.
Mental Health Issues at Work: Essential Guidance for Employers
In the case, the claimant indicated that the lack of contact from the Trust to enquire as to his well-being following his hospital admittance had a negative impact on his mental health. So, what can be done to support employees with mental health issues at work?
- Maintaining reasonable contact with the employee by way of telephone calls and welfare meetings is often advisable. Agreeing with an employee as to the level of contact they prefer can help employers get the balance right.
- Occupational Health input can be invaluable to managing absence, but this case highlights the importance of following through on the recommended actions; it is not enough to simply refer the employee if the advice received is not then appropriately implemented.
- Finally, employers must be mindful that mental health may play a part if an employee who is seemingly acting unreasonably and allowances should be made for that to demonstrate that the employer has acted reasonably at all times.
For advice on mental health issues at work and managing an absent employee, contact our FREE HR Advice line.