Yet another survey has shown that employers don’t seem to take complaints of stress and depression seriously. Apart from the employee health, productivity and morale implications, there are good legal reasons why employers need to consider complaints of stress and depression sympathetically. If sufficiently severe, stress and depression can be disabilities under the Equality Act 2010. Even if the affected employee isn’t covered by the discrimination legislation, employers may find themselves on the wrong end of a constructive unfair dismissal claim because the employee’s position has become untenable. And, if the stress and/or depression or other mental health issues have been caused or exacerbated by the employee’s job, there is a potential personal injury claim lurking.
It’s fairly common for employees to feel stressed and overworked, particularly in the current difficult times. Sadly it is equally common for employers to ignore this, either because they don’t think they can do anything about it, or because they feel even more stressed than the employee. It’s easy to ignore complaints of stress, particularly if you feel that they aren’t valid. But while employers are entitled to assume that an employee can withstand the normal pressures of a job, they still owe a duty of care to their employees, and must take reasonable steps to minimize their employees‘ risk of illness or injury – including mental illness or injury.
So what should employers be doing? Firstly, take complaints of stress and depression seriously. As soon as you suspect something is wrong, it is worth having a tactful, informal chat with the employee in question to find out what is actually bothering them. It may not be what you think. You should also ask the employee what help they need – again, it may not be what you think and might be something you can accommodate easily. And, however tempting, make sure you avoid any suggestion that the employee ‘isn’t up to the job’ or ‘should just get on with it’. Sometimes a sympathetic ear is sufficient, and the employee will cope better knowing that there is someone who will listen.
But sometimes an employee will not want to talk to a manager, either because the issues are personal or because they fear for their job and are concerned about the stigma of mental illness, or being branded as ‘unable to cope’. You should encourage an employee to speak frankly with you, but if an employee insists that they are fine, you are entitled to take that information a face value. However, if it becomes obvious they are not coping, then you may need to take further action.
When considering what support to offer, you need to involve the employee. Ask what would help. Often, the solutions required are easily accommodated. It might be enough to spend five minutes in the morning with the employee, helping to prioritize the workload, allowing them to take some holiday or attend a stress management course. If the employee is asking for things that are simply not practical, discuss this with them and explain why. You should consider what resources are available to provide support. You can take into consideration what affect any support you offer will have on the other employees and the costs of any action you could take. Remember, you are only expected to take ‘reasonable steps’. You should also consider a referral to occupational health (if available), or getting medical information (with the employee’s consent).
Most importantly, you need to reassure the employee throughout the process that you are not trying to push them out of their job. If they believe otherwise, you could end up with a constructive unfair dismissal claim on your hands.
And remember – keep good notes of any meetings, and any helpful thought processes you have about the situation. If the worst comes to the worst and you end up in court, if you can show the judge that you treated the employee in a reasonable and sympathetic manner things will go a lot better for you.
‘This information is believed to be correct as of the date published. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter’.
Lucinda Bromfield, Employment Specialist, Bevans Solicitors
Lucinda Bromfield is an employment specialist at Bevans, advising on all aspects of employment law and alternative dispute resolution. Before becoming a solicitor she had experience of working in compliance and HR for large private and public sector organizations. She is a qualified mediator and has a particular interest in the role of effective communication and HR in building sustainable, profitable businesses.
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