Further to the recent webinar “Absence Management: How to manage mental health absences”, which you can now watch on demand, we had many questions raised.  The following are our responses to those we could not answer live at the time.

Where questions were of a similar nature, we have grouped these together and provided a generic response covering the key points asked.

1)  What should an employer do when a staff member who has exhausted SSP, but refuses to engage with the absence process? If taken to a formal process and dismissed would it be ongoing mental ill health or via a disciplinary process for non-engagement?

And

2)  It is clear employers have a lot of responsibility, but to what extent is there responsibility on an employer especially when they are refusing to co-operate, does not take prescribed medication and does not want to attend Occupational Health?

And

3)  What would you do if you cannot speak to the employee, you have tried texting, phoning, and letters, but they refuse to contact other than sending doctors notes, and family are prohibiting access to them? 

Just as an employer is legally obliged to honour the terms and conditions of the contract of employment, so too is an employee.  This means that an employee is obliged to follow organisation policies and procedures.  There will need to be careful handling of this type of scenario; ensuring that throughout the absence the company have been attempting to follow its own sickness absence procedures, that offers of support have been made, and where appropriate repeated.  Offering of making adaptations to the process and seeking medical guidance (with written records kept of your actions to evidence your reasonableness in trying to support and manage).

In mental ill health cases, you may not be clear on the extent to which their mental health is affecting them, including on their participation in a process.  Whilst it is on the face of it; a conduct matter when somebody does not adhere to company procedures, it may be more appropriate to continue managing the process on the information that you do have.  Ultimately, if you reach the point where a return to work in the foreseeable future is not clear, and they are now allowing you to explore how you help their return, then an ill health dismissal meeting may be your final course of action.

In terms of the conduct issues, certainly you would want to reference in any written correspondence a reminder to their responsibilities under the absence procedures, and to the extent that it may even be a disciplinary matter.  However, the point of this forewarning is to prompt them to start engaging with you, that should be your motivator.

Consistent failure to abide by company rules and reasonable instructions, without acceptable reasons, could potentially be treated as a separate conduct issue and could therefore potentially be managed through a disciplinary procedure, working through a series of warnings and ultimately dismissal. The reality though, is that this alone would unlikely lead to a dismissal, and often the reason for poor compliance is linked to the reason for absence itself which may be protected as a disability.

Regarding family members this can be difficult and can also be a breach of personal data, so our advice would be to deal with the employee direct in most cases.  The relationship is between the employer and employee and when it comes to managing absences from work, it is so vital that this relationship continues as ultimately it helps to support the eventual return to work.

However, in some limited and exceptional circumstances, particularly those which are of an extremely serious mental health nature (such as psychiatric hospitalisation), having a family member as a point of contact can be helpful and necessary.  It does not mean that you will not resume contact with the employee, it just may be a temporary measure.  For most cases though, communication really should be with the employee directly, and a request to the employee this continues may not be unreasonable.

We would encourage you seek HR advice further around your specific circumstances.

 

4)  What if an employee is in an end of probation meeting due to poor performance and they mention they are suicidal, and it is the first instance of them reporting poor mental health?

The fact that the employee has raised very serious issues before a decision has been taken on their continued employment means that you can act before it is too late and avoid running the risk of a disability discrimination claim.  Under the Equality Act, discrimination can occur where a person knew, or could reasonably have been expected to know, that the employee had a disability.  Mental health can be a disability for the purpose of the Equality Act.

Continuing with a dismissal after an employee raises an issue of this nature without any further investigations risk a disability discrimination claim.

The fact that it is raised at the eleventh hour generally is irrelevant.  We know that there continues to be a stigma with mental health and for many people, speaking up is very difficult.  An employer should take such information from employees as truth and at face value before making appropriate enquiries, rather than taking an initial view that they are making it up as a way in which to avoid having their employment terminated.

Upon raising it, explore more with the employee, and consider what extent their health has impacted on them at work and in particular their performance.  Seeking medical advice will therefore be important.  It may also be appropriate to postpone the outcome or extend their probation, depending upon the circumstances, as this will allow for further information to be sought.

Aside from any legal risk, continuing to dismiss someone in the same meeting in which they raise an extremely serious matter would be morally wrong.

 

5)  If you think someone is not fit for work due to mental ill health and are worried about their wellbeing can you force them to take time off work if they aren’t voluntarily? 

And

6)  What can employers do when an employee will not take any more time off but isn’t ready to be back at work and is only back because sick pay has run out?

This can be hard to manage practically because you cannot physically force somebody to take time off work, and so communication in handling the conversation is going to be critical.

Through effective conversation, you can get an employee to come around to making the decision.  However, if you have little experience in these situations, or do not feel comfortable then it is always helpful to have a second person with you in the discussion; perhaps a member of your HR team can support, or another team leader/manger.  If you have mental health first aiders in the workplace; then they too can help support in these discussions.

In these conversations it is about using your own observations to explain to them why it is you are concerned for their welfare.  Provide reassurance where you can (for example, they may not want to take time off because of an important piece of work) and emphasise the importance of seeking medical guidance and support.    Ask that they speak to their GP and let them know you are concerned for their welfare and ask if they feel well enough to be at work and do their role.

For some people with mental ill health, being at work can help bring normality and provides a safe place for them, so it may be, through conversation you can find appropriate solution in the workplace to support them remaining at work, such as workplace adaptations.

Pay can also be a contributing factor, and so it is important to have an open informal welfare conversation about their situation and through strong communication skills help them to make the best decision in their own interest.  Certainly, direct them to sources of help where they can seek financial advice.  In very rare circumstances it may be possible to consider medical suspension on full pay, if there are very serious and significant, warning signs that their own health and safety or that of others, may be at risk.  Of course, you would want to also consider contacting their emergency contact/next of kin in extreme serious situations and before taking this step as consideration must also be given to how they can safely go home. Suspension should always be the last course of action because of the risk of claim that it can bring (constructive dismissal).

 

7)  What can I do if an employee discloses mental illness to me but will now allow access to medical records?

It is an employee’s right to withhold access, so if they do not wish to participate in an Occupational Health Referral, or allow you to write to their GP, then you can only act regarding their employment on the information that you do have.

Again, it is how you communicate to your employee that will help achieve seeking their consent; setting out firstly how you need medical expertise for guidance on how best to support their health at work and any absences; but also reassure them around your confidential handling of such information and how it will be used.  It maybe you need to revisit the conversation later, in which case, it is about letting them know too that without it, you may have to reach decisions only on the information you do have.

 

8)  What do employers do when an individual will not accept that they have a mental health issue, will not engage with anything offered such as EAP, OHR or seeing their GP, but their performance is poor?

You are entitled to raise and deal with performance issues at work; how you approach should consider the relevant circumstances and factors.

On the one hand you put forward the under-performance, using examples to illustrate, and seek any mitigation from your employee.  It is for the employee to put forward why it is they think their performance is impacted.  Employers can of course enquire about how they are and if there is a known history with mental health, explore whether this could be a contributing factor, as this would be a reasonable step to do.  However, if the employee is adamant then you can only continue to manage their performance as you would do, in line with your company policy.  But it is important to add that under the Equality Act, discrimination can occur where a person knew, or could reasonably have been expected to know, that the employee had a disability.   Therefore, consider what reasonable adjustments may be required to assist under performance, if there is a chance that their disability is contributing towards it.

 

9)  With the increase of working from home, how does one manage a person who is not visible?

Ensure you have reflected poor mental health in your workplace risk assessments.  This is essential as your duty of care towards employees extend to when working from home.

Look out for signs; so, you may see a change in somebody’s behaviour.  You may receive comments from other team members who through their interaction have identified a change too.

Keeping in contact is vital between manager and employee, both formal and informal.  By doing so, you gain an insight into how they are coping with working from home.  Using your 1-2-1s is always important way for checking in with your employee is doing, both with work, but with what may be going on outside of work.

Where you do spot signs and you are worried for them, then be sure to raise your concerns with them to find out what help or support they may need.  If you offer EAP, then remind them of this, and direct them to any other services, or medical professionals that you think may be of help.

 

10)  Would you look to put in place all or most reasonable adjustments before starting a more formal process?

Not necessarily, it will very much depend on each case.  Under the Equality Act, discrimination can occur where a person knew, or could reasonably have been expected to know, that the employee had a disability.   Therefore, your obligations can exist outside of any formal process taking place.

 

11)  How would you treat COVID-19 related absences during the pandemic? Would you adjust the absence procedure and trigger points?

 COVID-19 is still a relatively new medical condition and there is also not much known about ‘long Covid’ where people are reporting to still be suffering from the effects of the virus for some time after becoming infected.   Given the unprecedented situation that a pandemic is, and the transmissibility of the virus, I would advise that employers do make allowances for COVID-19 sickness absences.

Where it may become difficult though is where absence cases become longer term, or intermittent over a prolonged period.   In these circumstances, I would advise seeking medical advice either via Occupational Health or by writing to their GP to understand more about how they are affected day to day, and prognosis to guide in managing their absences.  Potentially, depending on the nature of the health issues, the impact of them and prognosis moving forward, it may be their health could fall under the definition of disability for the purpose of the Equality Act; but you would need to seek medical advice to help form a view on this.

 

12)  What would you advise, when an employee’s mental health is affecting the line manager and the team around? All support has been offered but the individual needs so much time and support that it stops others working?

Firstly, if you offer an EAP, remind the wider team and the manager of this, as it is available to them also.

Talk to your employee in an informal welfare meeting; carefully covering the areas where you are observing they need help with at work and seeking their view.  What could be done to help them?  Having an honest conversation from a work perspective is necessary.  For example, if they are going to people asking for their work to be frequently checked, then talk about how they can move away from doing this?  I think it is about looking carefully at their role and exploring where they find the challenges, and then identifying workable solutions.  It may ultimately, show that there is a lack of capability and it is this that is driving the extensive support and guidance that may be needed.  We would recommend seeking HR guidance in this case so that the matter can be managed appropriately being mindful of any discrimination element.

 

13)  If a reasonable adjustment is made to give the employee time off to attend medical appointments/counselling, should this be paid or unpaid?

In general, there is no statutory right to time off to attend doctors or other medical appointments, and these appointments would ordinarily be subject to their terms and conditions of employment.  So, if the contract does not allow for the time off to be paid, then this is how the appointments would be treated – in general.

However, if you have an employee, who, as part of treatment or rehabilitation for a disability must attend frequent appointments and needing more time off work than somebody who does not have a disability, then paid time off to attend these appointments may be deemed a reasonable adjustment.

This is because the law requires the employee with the disability to not be disadvantaged at work and if they are to have more time off than somebody who does not have a disability, then unpaid appointments could disadvantage them.

 

14)  Employees have in their contract an entitlement to an uplift in pay when working unsociable hours. Therefore, when they are unable to attend work, including when off sick, they do not receive the additional pay. If somebody is off due to mental ill health, is there anything that can be done to assist to prevent financial hardship? 

If a pay policy disproportionately discriminates employees because of their health, and that health is a disability for the purpose of the Equality Act, then the policy may be indirectly discriminating under the Equality Act 2010.

Whilst direct discrimination overall cannot be justified (there are limited exceptions but would not apply in this matter), indirect discrimination can be, if there is a proportionate means of achieving a legitimate aim.  This means if you can balance the need for paying unsociable pay to the act of discrimination.

We would recommend giving due consideration to factors such as how many employees overall are affected by this pay policy; what is the risk to staff retention if you removed this pay policy; to what extent are the job roles seen as business critical and thus warranting the additional pay; what else could be offered to all employees that would achieve the same result (as in achieve your staff retention, employee engagement).  Versus, what other benefits could be offered to replace the lost pay for employees who are off sick and do not qualify for the unsocial hours premium?    Such as pay to extend the number of EAP counselling sessions where you provide EAP.  It is common for EAP schemes to offer a set number such as 6, so you could consider increasing this for those who have disabilities.

 

15)  Who provides the mental health training for line managers and mental health first aiders

HR Solutions can offer mental health first aid training for line managers and those nominated in the business to be a mental health first aider.    You can reach us on 0844 324 5840 or contact us online.