To reduce unfair dismissal or disability discrimination claims companies need to be able to show that they have taken steps to help deal with employee stress, says solicitor David Malamatenios.
The economic climate and recession have contributed significantly to an increase in work-related stress. There is a need to identify employees who are at risk of stress and to have a strategy to deal with them, while causing minimum economic and financial damage to the business. The aim is to get the employee functioning and back to work as quickly as possible.
Where this is not possible, employers may have to look at dismissal. This presents its own challenges, particularly when the employee is likely to be covered by the disability provisions of the Equality Act. These are some of the most difficult issues faced by HR professionals and the ones most likely to lead to linked unfair dismissal and disability discrimination claims.
Disability discrimination
Before moving on to practical advice on stress and unfair dismissal, we need to consider the nature of a disability under the Equality Act and whether or not stress or stress-related illnesses are capable of being disabilities under the legislation. Work-related stress issues are likely to manifest themselves as mental illnesses – usually depression.
The Equality Act 2010 – and related case law under the old Disability Discrimination Act – establishes the legal tests for a qualifying disability. Essentially there are four elements:
- There must be a physical or mental impairment.
- This impairment must have substantial adverse effects.
- Those substantial effects must be long term.
- The long-term substantial effects must have an adverse effect on normal day-to-day activities.
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The case law has established that mental illnesses can be covered by the disability provisions of the Equality Act. However, in order to qualify as a disability under the legislation, the impairment must last – or be likely to last – for one year or more. Consequently, many event-specific forms of stress and depression, such as bereavement, the break up of a marriage or short-term stress at work, are unlikely to qualify as disabilities. For this reason, it is important for employers to seek an independent and specialist medical opinion from an OH specialist or consultant psychiatrist to establish the prognosis of the stress-related illness and whether or not it is likely to qualify as a disability under the legislation.
It is often safest to assume that the employee will be covered by the Equality Act. If you do so, and make or consider making reasonable adjustments, this will provide an additional layer of protection in respect of any unfair dismissal and disability discrimination claims.
Assuming an employee is covered by the disability provisions of the Equality Act, it is unlawful for the employer to engage in the following:
- direct discrimination;
- discrimination arising from disability;
- indirect discrimination;
- failing to make reasonable adjustments; and
- harassment and victimisation.
Unfair dismissal
Stress-related issues and illnesses often present as absences from work and can be closely related to challenging workload issues. The dismissal of employees who claim to be suffering from stress arises frequently. This often leads to linked tribunal claims of unfair dismissal and disability discrimination. For instance, an employer may dismiss where an employee’s absence is unauthorised or excessive or following long-term sickness absence. The employer needs to show that the reason for the dismissal is fair – such as conduct, capability or some other substantial reason.
Conduct (excessive absenteeism)
An employee may claim that conduct of issues are due to stress. The underlying reason for the absence needs to be investigated. If there are signs of a stress-related illness, medical advice should be sought. If investigation shows no good reason for the absence it might be misconduct. The employer may then take disciplinary action against the employee and warn the employee in the first instance. Dismissal can follow if there is no improvement.
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Where an absent employee has a doctor’s certificate but the employer suspects that they have been malingering, it is still the case that dismissal in these circumstances, without investigation and without checking the employee’s prognosis with the doctor who has provided the certificate, may render the dismissal unfair.
Investigations into stress-related illnesses are important because an employer can discriminate against an employee on the basis of disability, even if the employer is unaware of a disability. Indirect discrimination requires no knowledge of the disability. Discrimination arising from disability and failure to make reasonable adjustments can also arise when the employer has no knowledge of the disability if there are circumstances that ought to have reasonably led the employer to that knowledge.
Capability
An employer could rely on the potentially fair reason of capability even where there is a stress-related illness, which might be a disability. There must be adequate investigation, including obtaining medical advice. It is important that the employee was aware and failed to meet the employer’s requirements and had been issued with formal warnings. The employer must also show an adverse impact on the business caused by the absence and, in cases where the illness is likely to be covered by the Equality Act, reasonable adjustments have to be considered – such as whether or not there might be an alternative position more suited to the employee’s condition.
Some other substantial reason that could justify the dismissal
Some other substantial reason could be, for example, a health and safety reason that the employee could not continue in the job with their stress-related illness. However, the employer must still go through a period of consultation with the employee and consider whether or not there are any suitable alternative vacancies in which the ill employee could be placed.
Operating a fair procedure
To implement a fair disciplinary procedure, an employer must follow a fair procedure under s.98 of the Employment Rights Act. If it becomes apparent that stress-related factors have contributed to the employee’s poor performance – this may come to light during the disciplinary proceedings themselves or earlier at appraisals – then the employer is effectively on notice of the health risk to the employee and ought to take reasonable steps to remove that risk.
One way to tackle this issue is to ask the employee during the disciplinary proceedings what steps could be taken to remove the stress. If the stress has been contributed to by poor supervision, this should be taken into account and steps taken to train managers. Where the stress has been caused by others in the workplace or as a consequence of bullying or an aggressive management style, then it must be raised with the managers in question. If this is a cause of the stress, then you must consider if it is right to continue the disciplinary action.
Managing stress
These precautions will help decrease the risk of successful stress-related tribunal claims for unfair dismissal and disability discrimination claims.
It is helpful to train managers to recognise situations that are likely to cause stress so that they can be managed before the situation gets out of control. This will save lost management time and cost dealing with the issue later. It is also important to provide support through an assistance programme, occupational health service, counselling or help line. Simply having such a service available to employees can be a defence against a claim.
Employers should also consider devising an anti-stress policy setting out their approach to stress and stating what action will be taken to protect staff and to prevent stress and mental health issues arising at work. This is far less onerous than having to deal with the persistent loss of time and productivity caused by employees who are absent owing to stress, and the disciplinary issues that are thrown up when these matters are addressed.
David Malamatenios is a partner at Colman Coyle Solicitors
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