Top tips from B P Collins’ employment team
Tip #1: bear in mind that mental health conditions can be disabilities
Mental health conditions can be disabilities, provided they have a substantial, long-term and adverse effect on the employee’s ability to carry out normal day-to-day activities. However, they tend to be less obvious than physical disabilities and many will often be “invisible” disabilities.
If an employee is disabled, they will have additional rights and protections against discrimination. For example, you will be required to make reasonable adjustments to your policies and procedures to avoid disadvantages the employee faces because of their disability. They will also be protected from discrimination.
If you need advice on managing mental health in the workplace, please get in touch with our employment team by email or by phone on 01753 889995.
Tip #2: be aware of the limitations of occupational health reports
It’s often a good idea to obtain an occupational report when it becomes apparent that an employee has a mental health condition which is relevant to their work. But there are limits on what you can expect from an occupational health (OH) report.
First, these reports are usually prepared on the assumption that the employee has been frank, open and honest with the occupational health professional. However, sometimes that is not the case. Other employees may overstate their symptoms, thinking that this might improve their position. On other occasions, they will understate them, for example because they are worried that they will be dismissed if they reveal the true extent of any difficulties they are experiencing. OH professionals are not lie detectors and employers should be mindful of this when reading their reports. This is particularly so if the report doesn’t tally with the employer’s own experience of the employee in question.
Secondly, OH professionals are not lawyers and (as their reports will often say) the question of whether or not an employee is disabled for the purpose of the Equality Act is a legal question. Even where an OH report gives an indicative view, that will not be conclusive and if the matter comes to tribunal, the employment judge could make a different decision. Similarly, although OH professionals can make recommendations as to adjustments which might benefit the employee, they cannot say whether those adjustments are necessary for employers to comply with their duty to make reasonable adjustments for disabled employees.
Make no mistake, OH reports are a useful tool – but they should still be read with a critical eye.
Tip #3: have clear policies and procedures – and then follow them
Having clear and robust policies and procedures can be very helpful in managing mental health and particularly mental health-related absences. Sometimes, employers can be tempted to defer absence management altogether in mental health cases. Usually, however, this is just delaying a difficult conversation.
If an employer does decide to defer absence management or to adapt their policy for a particular employee, then it’s important that the decision to do so is communicated to the employee and that the reasons for the adaptation are well documented. This ensures that clear expectations are set with the employee from the very beginning.
For further help and advice on this matter or any other employment issue, please contact B P Collins’ employment team at enquiries@bpcollins.co.uk or call 01753 889995.
