How should employers deal with staff requesting mental health days?

Laura Kearsley

An employment law lawyer has answered some of the most frequently asked questions relating to mental health sick days taken off by your staff.

Laura Kearsley, partner and solicitor in the employment law team at Nelsons, tackles some essential questions.

Such as:

Do I have to pay my employee for a mental health sick day?

Ms Kearsley: 

Despite growing awareness around mental health in the workplace, employers are still finding themselves unsure of how to approach mental health with employees, particularly absences due to mental health.

If your employee takes time off with a mental health issue, this should be treated like any other sick day in accordance with your sick pay policy and – if applicable – the statutory sick pay scheme.

Should I record mental health sick days differently?

Ms Kearsley: 

Employers should keep a record of all sickness absence regardless of the cause as this is an important attendance management tool.

Where an employee is regarded as physically or mentally disabled, then it is a good idea for the employer to record disability related absence alongside other absence so that this can be considered in any capability processes.

It is also a good idea for an employer to monitor mental health sickness absence in case any patterns or trends emerge, which the employer might want to consider or explore with the employee as part of their duty of care.

In addition, monitoring absence trends across an organisation can be a useful tool for an employer to determine whether there are any patterns or issues in any particular branch or department that might require consideration.

Can I dismiss or discipline someone if absence due to mental health is starting to impact on their work?

Ms Kearsley: 

Ultimately, employers are entitled to expect a minimum level of attendance from employees and if long term or repeated sporadic absence is having an impact then employers can consider this in the course of fully informed capability proceedings. 

This might involve the employer taking advice from the employee’s doctor or specialist or seeking advice from an occupational health practitioner. 

This can also be the case if mental health issues (rather than absence) are making it difficult for the employee to meet the standards required for their role.

However, before any drastic action can be taken, the employer will need to consider whether there are changes they can make to improve attendance or performance, or whether there is the support they can offer and whether these measures are reasonable. 

If an employee is classed as disabled, the employer has a duty to make reasonable adjustments to accommodate the disabled person.

What sort of accommodations do I need to make for employees reporting negative mental health?

Ms Kearsley: 

Good employers will be supportive of employees with mental health issues. 

Employers should also monitor employee health generally and consider whether there are issues or causes if multiple employees in any branch or department are reporting issues at the same time. 

Support measures that employers can offer can include access to an Employee Assistance Programme, a telephone helpline for employees to access counselors. 

If an employee is classed as disabled, the employer has a duty to make reasonable adjustments to accommodate the disabled person. What is reasonable depends on the employer’s size and resources and the impact that the measure would have.