This guide covers:
- Have you been absent from work with mental health issues?
- Does the law protect employees with mental health problems?
- How do employers commonly react to mental health sick leave?
- Can you get a settlement payment after mental health absence?
- How do you negotiate a settlement for mental health issues?
- Can you be dismissed for having mental health issues?
- What to do if you’re dismissed for mental health reasons?
Have you been absent from work with mental health issues?
Mental health is one of the most challenging employment issues of recent times and is on the increase, with at least 1 in 4 people experiencing a mental health problem of some kind in this country every year. (See report by Mind – the national organisation working to improve mental health.)
Mental health problems can take many forms, ranging from the more commonly experienced ones such as anxiety, stress and depression, through eating disorders and addictive behaviours such as alcoholism and drug abuse, to less common conditions such as schizophrenia and bipolar disorder.
Yet, if you take time off for the more common mental health problems, or reveal any other kind of mental illness, 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 illness, that they cannot perceive and which can be hard to prove.
All but the most heartless and unscrupulous of employer 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. Sadly, however, the same cannot always be said for issues of mental health.
Does the law protect employees with mental health problems?
Employment law protects employees experiencing mental health problems in two main ways:
The employers’ duty of care
There is a legal requirement placed upon employers to take all reasonable steps to support the health, safety and wellbeing of their employees. In practice, this means that the work environment and working practices should support good mental health amongst employees, and also support employees who have mental health problems.
Disability discrimination legislation
If your mental health problem is categorised as a disability, then disability discrimination leglisation protects you in the workplace.
A disability is defined by the Equality Act 2010 as: ‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.’
- Examples of what counts as ‘substantial‘ would include a condition which frequently stopped you from focusing on a task for any length of time, or took you longer to do than someone without an impairment.
- ‘Long-term‘ means that your condition lasts or is likely to last for 12 months or longer.
- ‘Normal day-to-day-activites‘ would include such acts as your ability to interact with other people, to follow instructions or to keep to agreed working times.
If your employer fails in their duty of care as an employer, or discriminates against you when your mental health condition counts as a disability, then you are likely to have a valid claim against them.
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?
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, it is vitally important for you to draw the link between your illness and the offer.
How do you negotiate a settlement for mental health issues?
HR professionals are terrified of being accused of disability discrimination and having to go to an employment tribunal and 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 you deserve).
See our practical guide on how to negotiate a settlement agreement with fair financial compensation.
If you would like help in negotiations with your employer, just fill in a case details form to request a free phone consultation with a senior employment law solicitor at Monaco Solicitors.
Can you be dismissed for having mental health issues?
The short answer to this question is ‘yes’, particularly if you have been absent from work many times and if you are not capable of doing your job any more.
However, your employer can’t just terminate your employment without taking 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.
If your mental health problems are long-term (lasting, or likely to last, 6 months or more), your employer should at least have done the following:
- 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.
- Consulted you about the effects of your health condition on your role.
- Considered making reasonable adjustments, so that the role could have been continued.
- Explored different options with you, such as you taking on different work, adjusting your work load temporarily, or changing your work hours.
- Keeping your 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.
If your mental health issues are short-term (ie lasting, or likely to last, less then 6 months), then the steps your employer would be expected to have taken prior to dismissing you, would typically include:
- Giving you the chance to explain any absences associated with your health condition and giving you time to improve them if at all possible.
- Warning you if your absences were becoming a problem for the business.
- Monitoring your absences over a reasonable review period.
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, as discussed earlier.
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 Ill Health Unfair Dismissal letter builder in the first instance.
The app is designed to handle legal issues associated with most forms of ill health dismissal, including mental health cases.
To use the letter builder, you just answer a few questions about your dismissal. The app then creates a letter from you addressed to your (former) employer setting out your legal case and proposals for fair financial compensation. You download the letter, finish it off where necessary 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 you get a negative response, then get in touch to see if one of our expert employment solicitors at Monaco Solicitors can help you further. We have successfully represented hundreds of employees in your circumstances and we understand where you are coming from!