Over recent decades, as the UK economy has shifted from manufacturing to service industries so the traditional workplace illnesses have shifted from physical injuries to stress-related injuries. Society and employers have become more aware of, and sympathetic to, psychological illnesses such as stress and attitudes to addiction have also changed. All this raises new challenges for employers trying to treat their employees with compassion while also ensuring the business runs smoothly. Solicitor Justin Govier addresses some common questions.
Q An employee has just been signed off for the fourth month with “depression”. I would usually be referring him to see a company doctor, but how helpful will that be with a mental illness such as this?
It will still be appropriate for the employee to be referred to an occupational health physician (OHP). The letter of instruction to the OHP is vitally important and is often not given enough thought. The OHP must be made aware of all the relevant facts, including the job duties of the individual, and the instructions as to what you want the report to consider must be clear. The report should deal with the diagnosis and, with mental illnesses it is often useful to establish the causes of the illness. The report should also look at the prognosis, ie how long and at what severity the illness is likely to last, and to what extent the employee is likely to be able to undertake some or all of his duties in the foreseeable future. It may be helpful for the OHP to consider whether or not any arrangements may be put in place that would speed up the employee’s return to work: a phased return, working short days or short weeks for a time. It is up to the business to decide whether or not it is able to implement any such proposals.
Q Am I going to be accused of exacerbating the depression by trying to set up a meeting to discuss the report (and possibly talking about dismissal)?
The report needs to be discussed with the individual. At that meeting, consideration may be given to a return-to-work plan (incorporating any agreed arrangements and support) or, if the outlook is bleak, whether or not dismissal needs to be considered as an option. It may be sensible to ask the OHP to include in the report how best to conduct subsequent meetings and confirm what you would be prepared to do to facilitate those: holding them at the employee’s home or extending the right to be accompanied to a spouse. That can then be referred to if the employee refuses to meet you or claims your actions have made the illness worse.
Q We have an employee who is erratic and non-receptive to his manager; I have heard he is an alcoholic. He has had some time off recently for depression. My concern is that he might be considered disabled.
Addictions to alcohol, nicotine or any other substance are specifically excluded from the definition of disability under the Equality Act 2010. However, illnesses caused by an addiction might amount to a protected disability. Case law has confirmed that depression caused by alcohol abuse could constitute a disability providing it meets the criteria set out under the definition of disability (in general terms, being a physical or mental impairment that has a substantial and long-term adverse impact on the individual’s ability to carry out normal day-to-day activities).
Q If an individual is suffering from depression that constitutes a disability (as a result of alcoholism or otherwise), how does that affect how we approach it?
You must comply with the Equality Act. Any detrimental action (eg dismissal) will need to be objectively justified, usually based on the needs of the business and having looked at any alternatives.
You will also be under a duty to make any “reasonable adjustments” to the workplace to help accommodate the employee. This may include allowing extended time off for treatment or flexible working. It will usually be advisable to seek the advice of an OHP on possible reasonable adjustments.
In reality, the factors to consider with a disabled employee may not be hugely different to those an employer using best practice will consider in any long-term sickness situation.
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Justin Govier is the partner in charge of the employment team at IBB solicitors
