Mental health absence and dismissal from work

Some employers handle such situations well and are really supportive, but others don’t know how or don’t want to handle mental health issues in their workforce.

If you have been absent from work, dismissed because of mental health issues or are wondering whether you can negotiate a mental health settlement agreement or make an employment tribunal claim, then read on, because that’s what this guide is about.

It’s designed to be read alongside our related guides on discrimination at work and in particular  mental health discrimination at work, ill health unfair dismissal and psychiatric injury claims at work.

Have you been absent from work with mental health issues?

If you take time off for the more common mental health problems or reveal any other kind of mental health issue, you may find doors closing that previously welcomed you, and other inhospitable doors opening onto mental health discrimination at work.

Employers, particularly HR professionals, don’t like sickness, especially sickness arising from mental health problems, that they cannot perceive and which can be hard to prove.

All but the most heartless and unscrupulous of employers would allow an employee to take time off following a physical illness, support them through their treatment and welcome them back to work once they’ve recovered. The same cannot always be said for issues of mental health.

How do employers commonly react to mental health sick leave?

Regrettably, a significant number of our clients over the years have fallen ill because of mental health problems, particularly work-related stress, and have found that their employer’s reaction has been far from supportive.

While the employer may pay lip-service to the usual requirements, so as not to fall foul of the disability discrimination referred to earlier, their behaviour has actually led to employees being marginalised and stigmatised.

If you are reading this and are currently signed off work with a mental health illness, we realise that this is not the sort of thing you want to hear.

However, while some employers (especially certain corporates) deal with their employees’ mental health issues very well, our experience is that the majority of employers do not.

Some employers still hold out-dated and often negative views about people with mental health problems.  They may think the employee is lying in order to take time off and to orchestrate an exit package.

Other employers simply cannot admit as acceptable an employee with diagnosed mental health issues returning to work, and working in a business where a mistake could cost money.  

Can you get a settlement payment after mental health absence?

Yes, you can get a settlement payment following mental health absence from work. What this all boils down to is that:

• if you have a mental health condition and have taken time off as a result of it (or are on long-term sickness);
• if you want to leave your employment with fair financial compensation;

then the chances of you being offered a settlement agreement are high.  

In all circumstances, if you are offered a settlement agreement, it is vitally important for you to draw the link between your mental health condition and the offer.

 

How do you negotiate a settlement for mental health issues?

HR professionals naturally want to avoid being accused of mental health discrimination and having to go to an employment tribunal to justify their actions Almost always, the company will settle any claims or any threats of a claim well before this is necessary.

There is therefore a premium to be paid by the employer if it offers a settlement to someone who has diagnosed mental health issues, and you should not let your employer under-settle any claim you have (ie pay you off with less than your case merits).

See our practical guide on how to negotiate a settlement agreement with fair financial compensation.

 

Can you make an employment tribunal claim after mental health absence?

Yes, you can make an employment tribunal claim, providing your condition is long term (over one year) and can in other respects be counted as a disability under the Equality Act 2010. If it can be counted as a disability, then you are protected from discrimination by the Act.

If you can also prove that you have been discriminated against and if you haven’t been able to reach a settlement agreement with your employers, then you can make an employment tribunal claim against your employers, providing you are within the strict employment tribunal time limits for submitting a claim.

See our guide on Disability discrimination for further detail about what counts as a disability and how to go about making a disability claim in an employment tribunal.

Can you be dismissed for having mental health issues?

The short answer to this question is ‘yes’, you can be dismissed for having mental health issues. This is more likely if you have been absent from work many times and if you are not capable of doing your job anymore.

However, your employer can’t just terminate your employment without taking steps to show that they have done everything they reasonably can to keep you in employment.  They must also follow certain procedures before taking the final step to dismiss you.

Dismissal if your mental health problems are long-term

If your mental health problems are long term (for these purposes, lasting, or likely to last, for several months with frequent or continuous periods of absence from work of weeks or months), your employer should at least have done the following:

1) Investigated your mental health condition

This would typically include your employer asking for such information as your medical records, a GP medical report, an occupational health report.

2) Consulted you

Discussed with you the effects of your health condition on your role.

3) Considered making reasonable adjustments

Such adjustments would enable your job role to continue.

4) Explored different options with you

Options to enable you to continue to be employed, such as you taking on different work, adjusting your workload temporarily, or changing your work hours.

5) Kept your work role open for you

Kept the work role open for you for as long as they reasonably could (without undue detriment to the business), in anticipation of your recovery and readiness to resume the role.

Dismissal if your mental health issues are short-term

If your mental health problems are short term (ie typically resulting in absences from work of a few days at a time even though the problems might last a lot longer), then the steps your employer would be expected to have taken prior to dismissing you, would typically include:

1) Giving you the chance to explain absences

Inviting you to explain any absences associated with your mental health condition and giving you time to improve them if at all possible.

2) Warning you about your absences

If your absences were becoming a problem for the business, you should be given fair warning that this was the case and therefore that your position was at risk unless the absences were reduced.

3) Monitoring your absences

Your employer should take steps to monitor your absences over a reasonable review period and inform you of their actions.

If your mental health problems amount to a disability (see above), then your employer has even more requirements placed on them before they can fairly dismiss you, or else they face the real risk of you claiming for disability discrimination. (See our guide on disability discrimination for further details.)

What to do if you’re dismissed for mental health reasons?

If you have been dismissed for mental ill-health reasons and you think your dismissal may have been unfair – for example, because it didn’t comply with the guidance set out above –  you might like to try our free Virtual Lawyer app to draft a ‘without prejudice’ legal letter to your employer as a first step.

Virtual Lawyer is designed to handle legal issues associated with most forms of ill health dismissal, including mental health cases.

How to use Virtual Lawyer

To use the Virtual Lawyer letter builder facility, you just go to Virtual Lawyer here and answer a few questions about your dismissal.

The app then creates a draft letter from you addressed to your (former) employer setting out your legal case and proposals for fair financial compensation and a settlement agreement.  You finish off the letter with one or two points of detail and send it to your employer.

With any luck, that should produce a response from your employer within a week or so, indicating their willingness to negotiate.  If you don’t get a response,  send a reminder together with another copy of your letter.

If your employer continues to ignore your letters, then that’s the time you would make an employment tribunal claim (if you hadn’t done so already) – bearing in mind the strict time limits that exist for making tribunal claims.

Next steps

If you are being treated badly at work, have been dismissed because of mental health sickness absence or are struggling to negotiate a settlement with your employers, then get in touch to see if Monaco Solicitors can help you further.

We are well-established employment law solicitors who only represent employees. Our specialist lawyers are experts in negotiating settlement agreements and in helping employees like you with your employment tribunal case, particularly where you have been discriminated against or treated unfairly because of your mental health conditions.

For expert advice and a friendly but professional and highly confidential welcome, contact us:

• By this website link
• By phone on 020 7717 5259
• By email: communications@monacosolicitors.co.uk