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From an employer perspective the potential cost of ignoring the issue of mental health is significant. A recent study by the Chartered Institute of Personnel and Development found mental ill health led to:
• 57% find it harder to juggle multiple tasks
• 80% find it difficult to concentrate
• 62% take longer to do tasks
• 50% are potentially less patient with customers/clients
There are a variety of reasons why an employee may be absent from work and their rights and your obligations toward them will differ depending on the reason. Sickness absence and annual leave are just two of the reasons why your staff may be away from work.
Sickness absence
Statutory Sick Pay is the minimum level of payment you must make to any qualifying employee unable to work because of physical or mental illness or disablement. Employees are entitled to SSP from their fourth ‘working’ day of sickness onwards and is payable for a maximum of 28 weeks for any one period of sickness. You may provide enhanced sick pay either as a contractual right or at your discretion. It’s important you have a written policy setting out how and when the employee has to inform you if they are off-sick and also giving you the right to have them see occupational health if for example you wanted a medical report to help inform you about their absence.
Where employees are on long-term sick it’s important to keep in touch with them and to explore options with them such as a phased return to work or alternative duties. You should also be mindful that certain conditions are deemed disabilities under the Equality Act and in other cases we need to look at the circumstances of that individual to consider whether their condition may constitute a disability under the Equality Act. Don’t make any assumptions.
Holidays
There has been a huge amount of focus on employment status recently with some notorious cases involving Uber and Addison Lee, in both of which the EAT upheld the employment tribunal decision in favour of worker status. This is relevant in this context because both workers and employees are entitled to 5.6 weeks’ paid holiday per year (known as statutory leave entitlement or annual leave). An employer can choose whether to include bank holidays as part of statutory annual leave or to offer more leave than the legal minimum.
Employers looking to retain staff should encourage (and support) people to take their full holiday entitlement as part of ensuring a work/life balance and should set an example. Holiday request forms, an employee absence record, statutory sickness forms and a separate sickness and absence policy can all help ensure any time taken off by your employees is properly accounted for.
Working relationships
Promoting positive working to avoid conflict and dealing with unacceptable behaviour is essential in creating a productive workplace.
Best practice is to ensure you have policies, procedures and systems in place to prevent and resolve unacceptable behaviour, to enable managers to deal with unacceptable behaviour effectively and to enable employees to report unacceptable behaviour. You should also ensure your managers have received appropriate training to equip them to deal with these situations.
The Equality Act 2010 protects employees from harassment at work by you or their colleagues and includes things like abusive or threatening comments, jokes or behaviour.
In the event of a claim being brought against your business for harassment, it can be a defence to show that you had taken all reasonable steps to prevent an employee carrying out discriminatory acts. Examples of such ‘reasonable steps’ may be having and implementing equal opportunities and anti-harassment and bullying policies, ensuring all employees are aware of those policies and providing training. You must also ensure you deal with any complaints received effectively and promptly.
Stress in the workplace
As an employer you have a legal obligation to ensure the health, safety and welfare of your employees and risk assessments for work-related stress form part of this. From a productivity point of view mental health conditions, musculoskeletal disorders and stress are three of the most common causes of long-term sickness absence making it crucial to address them effectively.
Some forms of mental ill health may be classed as a disability under the Equality Act 2010 if they have “a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.” The Act makes it unlawful for an employer to treat a disabled person less favourably than they do or would treat others because of their disability.
An employee suffering from work related stress may also pursue a personal injury claim against you as well. You should seek specialist advice if you have an employee who is suffering from stress. Often we find that clients are less sure of how to support someone with mental ill health as this is seen as a sensitive subject, and it may be helpful to source specialist training for line managers so they can listen and interact effectively with the employee who may have severe anxiety or depression.
Job design & flexible working
Flexible working is another way of giving employees some control over their working life which is likely to improve their commitment and loyalty to your organisation.
The law says that the statutory right to request flexible working applies to all employees who have at least 26 weeks’ continuous employment, irrespective of whether they have family or caring responsibilities. Some specified categories of workers are excluded, such as ‘employee shareholders’ and some agency workers. Under the legislation an employee can make a statutory request once in any 12-month period.
As an employer, you have a legal duty to consider a statutory request for flexible working (i.e. one made by an eligible employee under the legislation) in a reasonable manner and this is something you may need to seek advice about.
Simple tips for fostering wellbeing in the work place:
1. Assess whether your workplace offers employees enough choice, variety and flexibility, including flexible working patterns to enable people with varying obligations and commitments to remain in work;
2. Introduce health and wellbeing policies which empower employees to live a healthier lifestyle;
3. Encourage (and support) people to take their full holiday entitlement without checking their emails;
4. Conduct regular employee surveys to uncover stress, morale and workload issues – and then take positive steps to address any problematic areas which are disclosed.
If you would like further advice about employment law and your obligations as an employer or are interested in a review of your company contracts, policies and working practices contact our employment specialist Camille Renaudon for an appointment on 01270 215117 or email cvr@hibberts.com
This blog is not meant to be taken or relied upon as official legal advice and we recommend you always seek professional legal advice if you have questions about your specific situation.
