If employees suffer from insomnia, how can an employer manage the knock-on effects? Joanne Christie looks at the options and legal implications.
According to a study published in the October 2010 issue of the journal SLEEP, sleep disturbances increase both the likelihood of employees taking time off work and the time it takes them to return to work after absences. In the study of more than 56,000 Finnish workers, researchers found that those reporting problems sleeping were more likely to suffer from mental and physical illnesses and to retire early.
A study published in 2007 by researchers at Keele University found that 37% of adults in the UK suffered from insomnia, and that for 69% of those, the condition persisted for at least one year. With other studies also suggesting up to 50% of the population suffers from insomnia at some point, and with a further 2% to 4% suffering from sleep apnoea, it is clear that poor sleep is widespread.
What is less clear, however, is the extent to which this situation is being monitored and managed by employers. While many have begun to embrace lifestyle and wellbeing initiatives, sleep remains ignored by most occupational health practitioners, says Dr Les Smith, medical director at Health and Wellbeing UK.
He says: “Most people have looked at lifestyle and other health factors such as cholesterol, blood pressure, weight and obesity, but people have always missed that sleep has a huge impact on wellbeing and can be linked to physical diseases.
“In the workplace there is a huge demand for looking at performance at work. If you’re sleep deprived, if you haven’t slept well, it affects all the parts of your brain that you need – your ability to concentrate and be innovative and creative – and so there is definitely an effect on performance.”
In some cases, such as for those diagnosed with sleep apnoea – a condition that causes sufferers to stop breathing during sleep – the effect on a person’s ability to function is so severe that the condition must be reported to driving licence body the DVLA, says Myles Black, an ear, nose and throat surgeon at The Private Clinic of Harley Street.
He explains: “There are two types of sleep: REM [rapid eye movement] sleep, which is the dreaming sleep, and non-REM sleep, the deep sleep. A lot of these patients, because they have interrupted sleep patterns throughout their night, may have a higher proportion of REM sleep, so they are losing out on a lot of the deep sleep that is important for relaxation and concentration during the day. The result is that they have daytime somnolence, so they become very sleepy and tired during the day and that can have an impact upon their relationships, their work and their driving.”
Dr Chris Idzikowski, director at the Edinburgh Sleep Centre, says sufferers of sleep disorders are often unwilling to discuss their condition with their employer. “Most people will just try to manage themselves without looking for help or will end up with the GP. Often when somebody comes to us enquiring about their own sleep they will say they don’t want their employer to know and they are not keen to talk to their fellow workmates about it.”
The idea is to look at individual sleep-management programmes and develop a policy on managing fatigue”
Dr Chris Idzikowski
Idzikowski added that employers could get around this problem by polling their staff with sleep questionnaires. Smith says some employers are already doing this and with good results. “When I started to do health risk appraisal questionnaires, I included a section on sleep and the questions were very simple, such as: ‘do you think you get enough sleep?’; ‘do you get seven to eight hours of sleep?’; ‘do you get a good quality of sleep?’; ‘do you wake in the night often?’; and ‘do you wake feeling tired?’ When we looked at the overall results of these questionnaires we found a huge number of people complaining of sleep problems.”
But, he says, organisations need to do more than just hand out questionnaires. He adds: “The idea is to look at individual sleep-management programmes and, at the same time, look at fatigue and develop a policy on managing fatigue.”
Assessing fatigue is important in workplaces where a high degree of alertness is required or where employees operate heavy machinery or drive. Idzikowski says the air traffic control industry is one in which fatigue is generally managed well and shift patterns are adjusted to ensure that staff are not tired on the job.
In some cases, this type of monitoring could even help employees identify a possible sleep disorder. For example, it is believed that only one in four people who suffer from sleep apnoea have been diagnosed, so employees suffering unexplained excessive daytime fatigue may benefit from receiving information about the condition, particularly if they are overweight or suffer from diabetes, conditions that are known to be linked to sleep apnoea.
Idzikowski says many companies could also benefit from working out whether or not their employees are “owls” or “larks” – evening or morning types – and structuring their work days accordingly.
“Some of the companies that have rotating shifts have trouble managing at least half of the shifts,” he adds. “In a workplace situation an ‘owl’ would quite like working late into the night and they wouldn’t necessarily want to be paid extra to do it, so from a business perspective, what companies could do is have owls do the night shift. But this type of organisation is regarded as too extensive an exercise for businesses to do something about.”
He says that in extreme cases, employees may be referred to sleep clinics as part of legal proceedings when they find themselves facing disciplinary action at work.
As the Keele University study showed, insomnia is a condition that can last about 12 months. Under the Equality Act 2010, which replaced the Disability Discrimination Act, a person may be considered disabled if they have a physical or mental impairment that has a substantial and long-term effect – lasting 12 months or more – on their ability to perform day-to-day activities.
Obstructive sleep-apnoea sufferers could easily fall into this category because although many patients are treated with continuous positive airway pressure (CPAT) – a mask that is fitted over their face while they are sleeping – this is essentially a condition that will require ongoing treatment, according to Black. “The only thing that can make the condition temporary as opposed to permanent is in patients who have medical problems which we can treat and remove. One of these would be obesity. If they lose a lot of weight and get their body mass index within a normal range, this can remove the symptoms in some of them. Where there is an obvious structural obstruction to air flow, such as in patients with very large tonsils or significantly blocked noses, then we may be able to use surgery.”
It is possible that employees with insomnia could successfully argue they are disabled under the Equality Act”
Help and guidance
Occupational health practitioners could help sleep-apnoea sufferers by providing health information about weight management and quitting smoking or drinking, as improvement in these areas can reduce the symptoms in some patients.
Lynne Marr, an employment law partner at law practice Brodies, says it is also possible that employees with insomnia could successfully argue they are disabled under the Equality Act.
“Somebody who is disabled has to show that they suffer from a physical or mental impairment and they need to show that it has a substantial and adverse long-term effect on their ability to do normal day-to-day activities. It is likely that because of the symptoms you might have with insomnia that you will end up with some sort of physical and mental impairment.
“Before the Equality Act came into force you had to show that your normal activities that were affected fell into eight certain categories. Those eight categories are now gone so you don’t have to squeeze yourself into one of those categories so it is probably going to be easier to identify what normal day-to-day activities means.”
Employers faced with an employee reporting a disability are required to make reasonable adjustments so the employee is not disadvantaged in the workplace.
“If somebody has insomnia it may have a knock-on effect in that the physical or mental symptoms might cause them to be off sick more often,” Marr says. “If the employer has a sickness absence policy in place that says after two weeks you’ll be disciplined because of your absence, this would probably disadvantage that person because it means that they are liable to be disciplined more quickly than someone who does not have a disability.”
She suggests an employer might consider adopting a more lenient stance in such circumstances, but also points out that employers do not have to act on any adjustment an employee proposes, only those that are reasonable from a business perspective. “Employers shouldn’t think they automatically have to make whatever adjustment an employee puts forward,” she says.
Bela Gor, legal director at the Employers’ Forum on Disability, says employers should do whatever they can to help employees that are reporting problems. “Our view is always that employers shouldn’t try to work out whether or not something is a disability,” says Gor. “That is not their job, only a court can do that. If somebody is having problems at work for any reason, whether it is health related or not, the employer should try to make reasonable adjustments to help them do their job better.
“Assume they do and then work out what will help them to do their job better. That could be a change in working hours if it is a sleep disorder, or a change in location, or working from home if that is possible and reasonable. Try and remove the barriers that stop the person doing that job.”
Salo P; Oksanen T; Sivertsen B; Hall M; Pentti J; Virtanen M; Vahtera J; Kivimäki M. “Sleep disturbances as a predictor of cause-specific work disability and delayed return to work”. SLEEP, vol.33 (10), October, 2010.
Morphy H; Dunn KM; Lewis M et al. “Epidemiology of insomnia: a longitudinal study in a UK population”. SLEEP, vol.30 (3), March 2007.