Managing ill health at work – transcript

The following is a transcript of an interview with Crowley Woodford, Head of the European Employment Practice, conducted by Sarah-Jane Gemmell, Expertise Counsel.

Hello and welcome to the London episode of our Ashurst Employment World@Work podcast series. I'm Sarah-Jane Gemmell, Expertise Counsel in our London Employment Practice. In this episode, we're looking at how employers can manage ill-health in the workplace, and in particular, how they can best place themselves to deal with the significant increase in mental health related claims. To look at this issue today, I am joined by Crowley Woodford, the Head of the European Employment Practice.

So Crowley, let's start with the basics. Am I right in thinking that the employment law issue surrounding ill-health can be really tricky?

Yes, you're right Sarah-Jane. Whilst an employee could potentially have claims for unfair dismissal and breach of contract, the real exposure for an employer is the employee's ability to bring a disability discrimination claim. Such a claim can be based on many grounds such as direct or indirect discrimination, harassment, victimisation or failure to make reasonable adjustments, which I'll come onto in a bit more detail later. But the concern for an employer is that if the employee is successful, the award that can be made by the Employment Tribunal is uncapped. And just to pick up on your point on mental health related claims, I've seen a significant increase in such claims and in particular an employee going off work with stress or depression is now a common feature in response to an employer putting an employee through a disciplinary or poor performance procedure.

So Crowley, what do you mean when you talk about disability?

Well the legal definition of a disability is a physical or mental impairment which has a substantial and long term adverse effect on a person's ability to carry out day-to-day activities. An impairment will have a long term effect if it has lasted, or is likely to last, at least 12 months. So for example, a broken leg with no complications is not going to be a disability. The physical or mental impairment has to adversely affect a person's ability to carry out day-to-day activities. Unfortunately there is no one meaning for this, but in the workplace it could mean things like the individual having difficulties interacting with colleagues, following instructions, using a computer, preparing written documents, keeping to a timetable, keeping normal working hours.

If an employer has a member of staff who has a disability, what should they be doing?

An employer is under a legal obligation to make any necessary reasonable adjustments for the disabled employee to effectively create a level playing field with an able-bodied employee. Failure to do this could amount to discrimination. The objective of this obligation is for the employer to identify what features of the workplace puts that disabled employee at a particular disadvantage and make such reasonable adjustments as are necessary to eliminate that particular disadvantage. The duty is on the employer and the employee is not required to have ideas about what the adjustment should be. Also bear in mind that the employer's assessments are ongoing and are not one-off considerations.

You mentioned stress earlier, so is stress a disability within the legal definition of disability?

Let's first of all be clear what we mean by stress. The Health and Safety Executive have defined stress as the adverse reaction people have to excessive pressures or other types of demands placed on them. Stress is not a disability in law but it can result in other conditions such as depression which may be classified as a disability.

Okay, if we actually look at the lifecycle of the employment relationship, am I correct in thinking that employers need to be mindful of an individual's mental and physical health right from the start when someone applies for a job?

Yes, the Equality Act prohibits employers collecting information about a job applicant's health before any offer of work is made unless it is to identify any reasonable adjustments to the recruitment process, establish whether an applicant can carry out an intrinsic part of the job or to monitor diversity. The situation however changes once an employer has made a job offer. At that stage an employer can, for example, ask questions but it would be a high risk strategy for an employer to withdraw the job offer based on the answers in the health questionnaire.

What can an employer do once they employ an individual who is then persistently off sick?

In cases where there is a pattern of sickness absences, an employer shouldn't ignore the situation and hope it goes away. They should take reasonable steps to find out whether there is an underlying health condition. They should talk with the employee and possibly make an occupational health referral. Where the employee says for example, that they are depressed for work-related reason, then the employer may need to consider its duty to make reasonable adjustments which may include whether the employee could be engaged in any suitable alternative employment. And it's also worth adding that employees who are unfit for work are likely to be entitled to sick pay which may either be solely statutory sick pay or statutory sick pay with an employer discretion to enhance. If there is evidence to suggest that the sick days taken are not genuine then his may amount to a disciplinary matter where a disciplinary warning will probably be the initial sanction, but this is a tricky area for any employer and legal advice will be required.

What happens if an individual is absent for a lengthy period of time and the employer wants to dismiss the employee, are an employer's hands tied?

If the employee is disabled there will always be a significant risk in dismissing. In my experience employers have to make a judgment call on a case by case basis. Some employers decide that they do want to go ahead and dismiss the employee and defend any potential claims because they have consulted with the employee and have done everything possible to fulfil their duty to make reasonable adjustments. For commercial reasons, other employers in similar situations, i.e. they've consulted and made reasonable adjustments, want to draw a line under the situation straight away and agree a formal settlement agreement. Because any potential compensatory award is uncapped, there is a risk that a higher level of award will be negotiated to settle these potential claims.

So if dismissal is on the cards, does it make any difference to an employer's decision if an employee's eligible to PHI or is in receipt of PHI?

Actually yes, extra issues arise when the employee is eligible to receive income protection or is currently in receipt of it. The leading case in this area found that there is an implied contractual term that the employer will not terminate employment while the employeeis incapacitated for work, and could qualify for benefits under a group income protection or PHI policy, except in the event of gross misconduct justifying summary dismissal, or where there is a genuine redundancy situation for that employee. This means that employers who offer, for example, group income protection, should include a clause in their employment contracts giving them the express right to terminate for incapacity.

Crowley, do you have a final message for employers?

Clearly ill-health, including mental health related claims in the workplace, can often be personally distressing for both the employer and the employee. Having said this, employers should not shy away from understanding the underlying causes of the situation as soon as it arises, so it can be addressed effectively in the best way for both the employer and the employee.

Thank you Crowley. If any of our listeners have any questions about this topic or would like further information, do feel free to contact Crowley.