Legal Q & A: How to manage depression

By Derek Kemp of Human and Legal resources

Q What are an employer’s obligations if it has no idea that an employee
is suffering from depression?

A If there are no obvious signs, then no steps need to be taken.
However, Court of Appeal guidance suggests that once the indications are plain
enough that any reasonable employer should realise that something must be done,
then at that stage the employer is under a duty to act.

Q What should an employer do once it is clear that an employee is
suffering from depression?

A Firstly, the employer needs to consider the seriousness of the
depression. The term may mean anything from feeling low to a serious mental
illness.

If the employee is coping with work, then it will be sufficient for the
employer to have a discussion with the employee. Can the employer take any
steps to help the employee or to prevent the illness continuing or getting
worse? Employers may want to consider offering unpaid leave or counselling.

If the employee is absent from work or is at work, but not coping with work
pressures, the employer needs to take action:

Initially it may be sufficient to have a meeting with the employee to gauge
what is wrong, whether the depression is work-related and whether any steps can
be taken to help.

If the employee has not returned to work, or is still failing to perform
satisfactorily after a few weeks, the employer should consider obtaining a
psychiatric report from a consultant psychiatrist to find out the nature and
prognosis of the employee’s illness.

A report from the employee’s GP is unlikely to be helpful, so although a
consultant’s report will be expensive, it will be of much more use to the
employer in deciding what action to take.

If the employee refuses to allow the employer to get a medical report, then
the employer must progress without the benefit of a medical opinion.

Have a meeting with the employee to discuss their progress and, if a report
has been obtained, discuss the report.

Q Should the employer take any steps to assist the employee in returning
to work, such as a redistribution of workload, or training/development?

A Provided they are reasonable given the employer’s size and
resources, and likely to do some good. If nothing can be done to assist the
employee at work, then the employer needs to consider whether it is likely that
they will be able to return to work in a reasonable time scale (what is
reasonable will depend upon the type of job done by the employee and the
ability of the employer to cover the employee’s workload). If this is not
likely, then dismissal on the grounds of capability may be an option.

Q What can an employee sue for?

A Firstly, the employee could bring a claim for personal injuries if
they could establish the employer was aware of the illness but did not take
reasonable steps to prevent the employee from suffering further harm, and that
employee subsequently suffered harm as a result.

Once an employer is aware that an employee has an illness, a duty of care arises
under which it must try to prevent that employee from sustaining any further
injury. The difficulty for the employee is in showing ‘causation’ – the
employee must establish that the employer caused the further injury.

Secondly, the employee could be covered by the Disability Discrimination
Act. The employee would need to establish that they have a mental impairment –
they are required to show that they have a recognised illness. A diagnosis of
depression is insufficient, but for example, "reactive depression"
would be considered to be a mental impairment as it is a recognised psychiatric
illness.

If an employee is covered under the Act, then the employer has a duty to
make reasonable adjustments and not to subject them to any less favourable
treatment, without justification.

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