“If an employee has a mental health problem which is capable of being a disability, you are under a duty to consider making reasonable adjustments to enable him to continue working.”

As HR experts we’re no strangers to situations where employees are stressed and unwell. A significant number of the employees we see who are claiming stress are in a discipline situation. In such cases, we find that the claims are to try and reduce or remove the impact of an exploration of conduct or performance. It is an astonishingly common response, even where there is no prospect of a dismissal. It may also be that the fact of the process genuinely does cause stress. Unfortunately, the law leaves us little option, so the employer has to proceed as sensitively as possible.

While there is a certain amount of hamming up, stress and other mental health problems are a real and serious problem for many. A report by the OECD earlier this year said that Britain’s high stress, long-hours work culture has led to a higher level of people out of work with mental health problems than any other country in the developed world.

Last month, Nick Clegg announced that the Coalition will set national waiting time targets for those with mental health problems. He says that from April people with depression should be looking at therapy treatments within 18 weeks. Mental health issues cost the economy approximately £100 billion a year and 70 million working days alongside that. Mental health covers a wide range of issues such as depression; anxiety, bipolar disorder and stress.

‘Friends Life’ conducted a survey over a number of different industries and found that 40 per cent of employees had experienced some kind of mental health issue and had not told their employer. A mental health can be a disability under the Equality Act 2010 if an individual has a physical or mental impairment which has a substantial and long term effect on the ability to carry out normal day to day activities.

If an employee has a mental health problem which is capable of being a disability, you are under a duty to consider making reasonable adjustments to enable him to continue working. For example, stress can lead to extreme fatigue. By reducing hours, an employee could take a day off mid-week, or work less hours per day, allowing him to get more rest. Such adjustments may not be ‘ideal’ from a business point of view but you must be seen to be the reasonable employer.

Whether an employee wishes to tell you about any mental health problems or not, the fact that something is not quite right will sometimes be evident in the employee’s behaviour and/or performance. Lateness, isolation, emotional outbursts and a drop in productivity can all be indicators. In the first instance, talk to the employee informally. Once they have been directly asked about it people may open up about any underlying issues impacting on their ability to do the job. In most circumstances, disciplinary action would not be appropriate, at least initially.

Once you have established there is an issue, talk to the employee and ask him what you can do to help. Are there work related issues affecting him? What can you do to support him? Is the employee seeking help from a doctor or counsellor? Ask the employee what he is doing to help himself; try to ensure that he gets a break at lunchtime for some fresh air, encourage exercise and the exploration of meditation or other alternative treatments with his medical advisor These can be very helpful in cases of anxiety and depression.

After talking to the employee and giving him time to recover you may ultimately need to move to the formal procedure which will include setting targets and obtaining a medical report. Depending on the circumstances targets may be set to improve productivity, lateness or absence. At the end of the formal procedure one of two things will happen; the employee may be able to manage his health issues and continue to work, albeit in an adjusted way or after being given guidance and support over a period of time, there will be no improvement. If the correct procedure has been followed, you may be able to look to dismiss. Dismissal on grounds of capability is one of the five fair reasons for dismissal; this option should be a last resort.

Symposium Events has an HR shop where you can find a wide range of policies, forms and checklist to help you deal with employee health issues and performance at work.