Declaring mental ill health

This month Cheltenham Borough Council lost a High Court case in which it was suing its former managing director, Christine Laird, for £1m, claiming she withheld a history of mental illness when she applied for the job.

Laird told the High Court in March that she believed the appointment had been “unconditional” and there had been no requirement for a medical report. She said she had given accurate information about her past.

Laird was appointed in 2002, but left in 2005 on an ill-health pension after taking sick leave on full pay. The council had claimed it suffered financial losses amounting to more than £1m as a result of Laird’s “deceit”. Mr Justice Hamblen dismissed the council’s action.

This case raises important questions for all HR departments on the issue of what, if anything, it can require job applicants to disclose about their mental health. Not only is this a difficult area for HR professionals to get right, it is an issue that is becoming ever more pressing.

James Woolley, a consultant psychiatrist at the Priory Hospital, Roehampton, reports that, as the global economy deteriorates, he and his colleagues are dealing with increasing numbers of people from the financial sector who are suffering from depression and related conditions.

He says: “The pressures of today’s difficult economic situation mean that more and more people will encounter mental ill health at work – often shown as significantly impairing levels of anxiety or depression, or through increased rates of drink or drug misuse.” Clearly, this is an issue that no HR professional can afford to ignore.

Questionnaire content

So, what should Cheltenham Borough Council have done? Chris Roebuck, former global head of talent management and development at investment bank UBS and now an HR consultant, argues that the council could have prevented this problem by introducing a simple questionnaire into the application process.

He says: “The costs of having a full medical for all new staff would be prohibitive, but a ‘declaration of health’ by the new employee, the truthful answers to which are part of the contract of employment, is the solution. A set of simple questions about previous medical history that are not invasive but allow the employer to fulfil its health and safety and duty of care obligations should be sufficient.”

Although Cheltenham Borough Council did have a questionnaire, it was poorly drafted, and has since been improved.

Guy Guinan, an employment partner in the London office of national law firm Halliwells, says: “In the Laird case, one of the pre-employment questions posed was: ‘Do you see yourself as disabled?’ Ms Laird had apparently answered: ‘No’.

“In the case of Department of Constitutional Affairs v Jones 2007, it was recognised that a person with anxiety and depression problems could be naturally reluctant to consider themselves as disabled.”

He continues: “On the other hand, a pre-employment question may ask: “Have you visited your GP in the previous 12 months in connection with stress, depression, anxiety or any other mental health issue?” If the candidate responds that no visits were made to their GP, and then if it is subsequently discovered by the employer to be false, it may give grounds to fairly dismiss by reason of the employee’s non-disclosure amounting to a breach of trust and confidence.”

XpertHr gives an example of the sort of form employers should use.

Questionnaire timing

Not everyone is convinced that well-drafted questionnaires are the solution.

Another lawyer, Meriel Schindler, head of the employment team at law firm Withers, argues that this approach could still leave employers open to claims of discrimination. She explains: “The employer’s most important obligations are under the Disability Discrimination Act. This means that employees whose history of mental health problems may bring them within the ambit of the Act must not be ruled out simply on that ground.”

According to Schindler, “The employer who refuses to consider individuals with long-term mental health problems for senior management roles is in danger of directly discriminating on grounds of disability. The employer who gives the matter some thought, but fails to consider whether the job could, in fact, be done by the individuals with a degree of adaptation, is in danger of being found to have failed to make reasonable adjustments.”

This is why the likes of mental health charities MIND and Stand to Reason argue that these questionnaires should only be introduced once a job offer has been made.

“By withholding the questionnaires until then, it would be clear why the job offer was being rescinded and the employer would then have to explain clearly why they believe the mental health issue made the candidate unfit for the post,” explains Jonathan Naess, founder of Stand to Reason. “This is the practice in the US and many other European countries where it’s illegal to issue a questionnaire before a job offer is made.”

Naess believes that this is a serious issue that must be addressed. He says: “In 2004 the Social Exclusion Unit conducted a survey of employers and found that while 80% believed there should be some form of pre-employment disclosure, only 40% would hire someone who admitted to suffering from a mental health issue. Things have improved a little since 2004, but there is still an unacceptable level of discrimination in this area.”

Tackling discrimination

Naess has personal experience of that discrimination. After graduating from Oxford, and qualifying and working as a lawyer, Jonathan worked as a senior regulator at the London Stock Exchange before moving to corporate finance. When he was diagnosed with bipolar disorder and was applying for a new job he went to a GP to ask how he should describe his symptoms on a questionnaire. The GP told him not to disclose anything.

He believes that there are a great many people who receive and take similar advice. While properly worded questionnaires will enable their employers to dismiss them if their mental health issues later cause problems, Naess argues that this entirely misses the point.

“The real challenge here should not be to catch people out, or to ensure that those suffering from mental illness are prevented from working; it should be creating a business culture where they are understood, helped, and so feel comfortable about disclosure. This isn’t just a nice thing to do – it’s about business performance,” he says.

Productivity gains

There is indeed a strong business case for addressing mental health in the workplace. It causes absence and damages productivity. The March 2008 report Mental Health and Work commissioned from the Royal College of Psychiatrists by the cross-government Health, Work and Well-Being programme, revealed that sickness absence due to mental ill health costs employers £8.4bn annually.

Failing to address mental health issues also limits a business’s ability to hire the best people. Despite suffering from chronic depression, Judy Hamilton built a successful career managing bars and restaurants. However, she was appalled by the way interviewees who admitted to mental health problems were treated.

She says: “When I worked at La Tasca, fellow interviewers would openly mock and laugh at people who said they had mental health problems. I didn’t stick up for them for fear of being sacked myself. Whenever mental illness came up that became the sole focus of the interview, and I think employers miss out on many highly talented people in this way.”

Time to act

As Ruth Spellman, chief executive at the Chartered Management Institute, points out, the recession is creating increased stress for managers and this is presenting mental health problems for all involved.

“It is perhaps unsurprising, given the increased pressure managers are under because of the recession, that they are paying the price when it comes to their health and wellbeing,” she says. “Our research has found that 30% admit to suffering from stress and 13% have experienced depression.”

Woolley says: “Even in this day and age, people are afraid to admit to mental illness in case it is seen as a sign of weakness. Employers often don’t know how to handle someone with what may be difficult symptoms or behaviours, so avoid addressing the issues.

“However, many workplace related mental health difficulties can be relatively short lived and respond well to treatment if identified and taken seriously early enough.”

As it counts the cost of its losses in the wake of the Laird ruling, Cheltenham Borough Council must be wishing it had listened to advice like that a long time ago.

Top tips: dealing with mental health issues at work

  • Make sure your workplace is compliant with the Disability Discrimination Act (1995).
  • Get free advice from organisations such as the Commission for Equality and Human Rights on 0845 6046610 and websites such as www.direct.gov.uk.
  • Keep a detailed audit trail and be able to show that all of the options for retention and possible redeployment have been considered. This will help in the case of a tribunal.
  • Use employee assistance programmes and short-term solution-focused counselling to support those with common mental health problems through.
  • Introduce team resilience programmes. These can make an organisation more robust, supportive and better able to manage mental health issues.
  • Train managers in disability awareness, HR policy and absence management procedures.
  • Remember that line managers are crucial to managing workplace behaviour and identifying the early warning signs of individuals who may be suffering from mental health problems.

Source: Paul Avis, corporate development manager at HR services provider Ceridian

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