Practical steps for businesses in relation to stress related absences.

What are the key legal risks?

Claims for negligence or breach of the common law duty to take reasonable care are key risks. An employer has a duty to ensure that the tasks allocated to an employee do not damage their health. If an employee has gone off sick with workplace stress and their employer brings them back to the same environment without changing anything that made them sick the first time, and they become ill again, that's potentially a breach of the duty.

If a stressed employee (with at least two years' service) is dismissed and claims there is no fair reason for dismissal, and/or the employer failed to follow a fair procedure, they may bring an unfair dismissal claim. Alternatively, if, for example, the employee considers they were given an excessive workload leaving them with no option but to resign, they may bring a constructive dismissal claim.

Workplace stress can result in anxiety and depression which, if it meets the statutory definition of a disability, will mean they are ‘disabled’ for the purposes of the Equality Act 2010. There may be scope for them to bring disability discrimination or harassment claims depending on how they are treated by their employer.

Businesses also have a statutory duty to assess the risk of stress-related ill health arising from work activities and take measures to control that risk. If they fail in this regard they will be in breach of their statutory duty.

What should employers consider in practical terms?

Look at the company’s sickness absence policy to see if a framework is set out about contacting the employee when they are off sick and strive to follow that policy. Also try to gain a better understanding of what is causing the employee’s stress and whether it is related to the workplace or a private matter.

Remember that stress is not a formally recognised psychiatric medical condition but, if an employee’s condition involves anxiety, depression, or other mental health issues such that they may be deemed ‘disabled’, an employer will need to offer reasonable adjustments.

Depending on the length of the absence, the employer should consider an occupational health referral. This will consider the impact of the employee’s work on their health, whether they are fit for the work that they do and what steps, if any, would assist them in returning to work.

What are the main options if an employer is unable to return?

• Employers should consider if there is another job within the business that might be more suitable for the employee and keep a record that they have considered alternative employment. There is no duty to create a new job.
• The employer should check whether the employee is covered by their PHI scheme as these can cover mental health conditions.
• Employers are under a contractual duty to act in good faith as regards the possibility of early retirement under its pension scheme, if it has one offering such an option.
• Consider whether dismissal is appropriate. The reason for dismissal will usually be ‘capability’ if related to long-term absence. In each situation it will be important that a fair procedure is followed to best protect the employer against successful claims. An employer may want to consider whether to use a settlement agreement to settle any potential claims.