It took the Disability Discrimination Act 1995 to bring the concept of disability out of the wheelchair. Although the impact of mental illness at work is as likely to require employers to make reasonable adjustments as any physical problem, there is a continuing perception that mental illness carries a stigma.
A positive occupational health stance will help reduce the factors likely to cause or contribute towards mental illness associated with work, and will assist healthy staff members in coping with colleagues’ difficulties.
As well as being helpful in dealing with the prejudice that is often exhibited towards psychological and psychiatric disorders, a positive stance will enable progress to be made in work relationships involving personality issues and promote a clearer understanding of a problem that can afflict any of us at any time.
Mental illness can be described as an invisible disability. Poor performance may be an indicator of an incipient or fulminating condition. Depression Awareness Week (21 -26 April 2008) focused on employment issues, giving an important boost to dealing with factors at work that may be associated with any of the legions of conditions enumerated in section F of ICD-10 of the World Health Organisation’s International Classification of Diseases.
Occupational health personnel should be aware of the signs of these conditions as many behavioural difficulties arise before the sufferer acknowledges all is not well.
The underlying cause
There are frequent instances of failure to realise that a mental illness is the underlying cause of apparent misconduct or poor performance at work or bad relationships with colleagues. At the other end of the spectrum is the cavalier approach taken to diagnosing common psychological disorders without a proper history.
In Morgan v Staffordshire University (2002), the Employment Appeal Tribunal held that the casual use by GPs of terms such as “stress”, “anxiety” or “depression” will not amount to evidence of a disability for the purposes of a discrimination claim. Reference to the terms is not sufficient without appropriate medical records to support the diagnosis. And the diagnosis, whether or not based on objective criteria, is not usually one that appears on a short-term medical certificate. The disruption to the workforce is considerable when certificates, usually allowing for at least four weeks’ absence, appear in a series.
Depression Awareness Week focused on one specific disorder affecting the well-being and morale of staff with a consequent impact on business. This approach reflects the one taken by GlaxoSmithKline (GSK) in 2004, after a merger took place.
Aware of the inherent stress for the combined workforce of adapting to the changes, GSK implemented the requirements of its Global Resilience and Mental Well Being Standard, under which it would “continue to be protecting and enhancing the mental health of employees”.
It set about the task in three ways, listed in its Sustainability in Environment, Health and Safety Report 2003. The methods are worth quoting, as they reflect the present requirements for promoting mental health in the workplace:
Ongoing identification and assessment of job-related risks to mental well-being through such tools as the Global Leadership and Organisational survey business initiatives, and the launch of an intranet-based team assessment tool for managers
Reduction in risks and promotion of the general mental well-being of employees through such programmes as wellness initiatives and mental health care support systems
Early recognition and treatment of illness, confidential investigation, reporting and corrective actions to prevent any recurrence.
The GSK report refers to mental illness as being the third most common cause of occupational illness. But although mental illness accounted for 13% of named illnesses, it led to 50% of all sickness absence. Physical illness caused an average of 30 days’ absence, but mental illness accounted for twice that level.
Given that the Healthcare Commission Survey, published in September 2007, shows that one in six adults in the UK has a mental health disorder, it is not surprising that this is reflected in the ability to attend work.
What to do
The Department of Health, in the National Health Service Framework for Mental Health, said: “All patients with a common mental health problem should have their needs assessed and be offered appropriate, effective intervention.”
The first step is the identification of the problem in the context of the workplace. The next move is to identify the needs of the individual and then to assess what reasonably practicable steps can be taken to ensure his health and safety and that of his work colleagues.
Somewhere along the line, a decision may have to be taken on whether to exclude a person from work on a temporary basis through imposed sickness absence, or even whether employment should be terminated on the grounds of the individual’s lack of capability for carrying out the work he was employed to do.
The legal issues in the former situation are set out in Gogay v Hertfordshire County Council [2000] IRLR 703. It may be a breach of contract to suspend an employee on health grounds without sound evidence to substantiate the needs of the individual and those of the business.
The latter situation is covered by the usual principles of requiring fair procedures to be carried out before taking the drastic step of dismissal. These include making a realistic assessment of the possibility of a return to work after a prolonged absence and taking account of reasonable adjustments that may be made that would enable a disabled person to return to work.
Disease classification
From the occupational health perspective, familiarity with the World Health Organisation’s disease classification is essential. Medical insight may be needed to advise on whether a person is just being annoyingly ritualistic or is suffering from obsessive-compulsive disorder.
How high and low do the peaks and troughs of bipolar disorder or manic depression have to be before a medical condition is diagnosed? What are the stress factors that can trigger anxiety or depression? Is there a relevant “choice factor” involved, such as drug abuse or alcoholism in the acquisition of the illness? And how bad do the conditions have to be before they can no longer be tolerated in the workplace? Help is at hand from the Advisory, Conciliation and Arbitration Service (ACAS), whose new booklet, Health, work and wellbeing, is a miniature guide to the prevention of problems and identifying any that do arise.
A key topic is the awareness of changes of behaviour that may be an early warning sign of depression.
Occupational health personnel are in the unique position of being consulted on mental health issues. The perception is that employees are reluctant to discuss their problems with their managers, despite the availability in law of company discipline and grievance procedures.
It is important to draw up demarcation lines between work conditions that might affect mental health and social factors outside the employer’s control. Internal causes can be ameliorated by the employer, but external causes are likely to be outside the company remit.
A GP or a counsellor may be able to help. But the employer cannot rely entirely on medical help to resolve a workplace situation. The cause must be removed or conditions otherwise improved. You cannot expect someone to be driven to distraction by a bully and rely on medication alone to cure the problem. Pregnancy is another complication and employers should be aware of postnatal depression.
Part of a return to work package could include an occupational health consultation, bearing in mind the National Institute for Clinical Excellence’s Postnatal Care Guidelines of July 2006 and its advice set out in the February 2007 leaflet, Antenatal and Postnatal Mental Health.
Do not jump to conclusions about mental health. After all, we all have our ups and downs in life.
Whether a referral should be made depends upon how long the condition goes on for and if it affects the employer’s duty of care. For more on the GSK resilience approach, see the case study above.
Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn, London.
Joan Lewis, MCIPD, MA (Law & .Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.
Any enquiry about this article may be made to Joan Lewis at [email protected] Telephone 020 8943 0393
Casebook
As bad as it gets: Corr v IBC Vehicles (2008)
On 27 February 2008, the House of Lords held that IBC, the employer of a man who committed suicide, was liable for his death. Compensation was awarded to his widow.
In May 2002, Thomas Corr committed suicide. He had been disfigured by a workplace accident when a metal panel had struck his head. The injury caused him to suffer problems with balance and severe headaches. He had trouble sleeping and became irritable and depressed. He believed that he was a burden on his family.
The House of Lords held that the suicide “was the response of a man suffering from a severe depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer’s [actions]”.
Their Lordships concluded: “It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so.”
They held that the consequences of the accident were reasonably foreseeable. In this case, it was possible to find a direct link from the accident that caused depression to the suicide itself.
Bullying and mental illness: Green v DB (2006)
Helen Green was subjected to a campaign of harassment by co-workers at Deutsche Bank, particularly by four women who continually made offensive and mocking remarks and one man whom the judge described as having behaved like a football hooligan.
Events in her traumatic childhood were investigated by her employer to see whether she had inherited her mother’s schizophrenia and whether that was the cause of her breakdown rather than the trauma endured in the workplace.
The judge found that Green’s condition was attributable to the “wholly abnormal stress” of the workplace.
The judge awarded Green £800,000 to cover her loss of income and as compensation for the psychiatric injury inflicted by her colleagues.
Part of Deutsche Bank’s case was that Green had not disclosed her prior psychiatric history to her employer.
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This included a breakdown suffered as a result of being sexually abused by her adoptive father during her childhood.
Green countered that the logic of that argument was the flawed implication that any person who had been abused could not work for the bank.
