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Handling Mental Health-Related Absences: Best Practices and Legal Obligations

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Handling Mental Health-Related Absences: Best Practices and Legal Obligations

Mental health-related absences are a common challenge for employers, as mental health conditions can lead to prolonged or frequent time off work. Understanding how to handle these absences with compassion while fulfilling legal obligations is crucial for maintaining a supportive work environment and avoiding potential legal pitfalls. As we approach World Mental Health Day on 10th October, this article outlines best practices and key legal responsibilities for UK employers when managing mental health-related absences. 


The Impact of Mental Health on Absenteeism 

Mental health conditions, such as depression, anxiety, and stress, are among the leading causes of long-term absenteeism in the workplace. According to the Health and Safety Executive (HSE), work-related stress, depression, and anxiety account for a significant proportion of work-related illnesses in the UK, leading to lost productivity and increased strain on remaining staff. 


For employers, it’s essential to approach mental health-related absences with sensitivity, providing the necessary support to help employees recover while ensuring compliance with employment law. 


Legal Framework: Employer Responsibilities

Several pieces of legislation govern how employers should handle mental health-related absences in the UK. The primary legal framework includes the following: 


  1. The Equality Act 2010
    Mental health conditions may be classified as a disability under the Equality Act 2010 if they have a substantial and long-term impact on an employee's ability to carry out daily activities. Once an employee's mental health condition is recognised as a disability, the employer is legally obligated to make reasonable adjustments to accommodate the employee. These adjustments might include changes to the employee's duties, working hours, or environment to reduce the need for future absences.
    Employers should also ensure that employees are not discriminated against because of their mental health condition. Dismissing or penalising an employee solely due to absences related to mental health could constitute discrimination, which is unlawful under the Equality Act. 
  2. The Employment Rights Act 1996
    The Employment Rights Act 1996 protects employees from unfair dismissal, including those dismissed due to mental health-related absences. Before considering dismissal, employers must exhaust all reasonable options for supporting the employee, such as providing time off, making adjustments, or offering phased returns to work. Failure to follow these steps could result in a claim for unfair dismissal. 
  3. The Health and Safety at Work Act 1974
    Under the Health and Safety at Work Act 1974, employers have a duty of care to protect the health and wellbeing of their employees, which includes mental health. Employers must assess the risks of work-related stress and take appropriate steps to reduce those risks. Failure to manage mental health-related absences properly could be seen as a breach of this duty of care. 


Best Practices for Managing Mental Health-Related Absences

Handling mental health-related absences requires a delicate balance between meeting the employee’s needs and maintaining the business’s operational requirements. Here are some best practices employers should follow to manage these absences effectively: 


  1. Maintain Open and Supportive Communication
    Regular, empathetic communication is key to managing mental health-related absences. When an employee takes time off due to mental health, it’s important to keep the lines of communication open without making the employee feel pressured to return prematurely. Employers should check in on the employee's wellbeing at appropriate intervals and offer any necessary support, such as access to mental health resources or counselling. Employers should be mindful of their tone and approach during these conversations, focusing on the employee’s wellbeing rather than the business’s needs. For example, asking “How can we support you?” instead of “When are you coming back?” can make the employee feel valued and cared for. 
  2. Provide Access to Mental Health Support
    Offering access to mental health support services, such as an Employee Assistance Programme (EAP), can help employees manage their mental health more effectively and reduce the likelihood of future absences. Employers can also provide information on external mental health resources, such as helplines or therapy services, to ensure employees receive the support they need.
    Additionally, employers should consider providing mental health training to managers, helping them identify early signs of mental health issues and offer appropriate support. 
  3. Understand the Need for Time Off
    Mental health-related absences may vary in length and frequency depending on the employee’s condition. Employers should recognise that recovery from mental health conditions can be unpredictable and may require extended or intermittent periods of time off. Rather than viewing these absences as a problem, employers should approach them with understanding and flexibility.
    If the employee’s condition qualifies as a disability under the Equality Act, the employer is legally obligated to provide reasonable adjustments to help the employee manage their condition without taking excessive time off. These adjustments could include offering flexible working hours or reduced responsibilities upon their return to work. 
  4. Create a Plan for Return to Work
    Before an employee returns to work after a mental health-related absence, it’s important to have a plan in place that supports their reintegration into the workplace. This may involve offering a phased return to work, where the employee gradually increases their working hours or responsibilities over a period of time.
    Employers should hold a return-to-work meeting with the employee to discuss any ongoing support they might need and ensure that any reasonable adjustments are in place. A phased return can prevent the employee from feeling overwhelmed and reduce the risk of further absences. 
  5. Make Reasonable Adjustments
    As mentioned earlier, employers are legally required to make reasonable adjustments for employees with mental health conditions under the Equality Act. These adjustments are tailored to the individual’s needs and can help prevent further absences by making the work environment more manageable.
    Reasonable adjustments might include: 
  • Offering flexible working hours or remote working options. 
  • Reducing workload or reallocating certain tasks. 
  • Allowing additional breaks to manage stress. 
  • Providing regular check-ins with managers to discuss challenges and support. 


Handle Absence Records Carefully
Employers should ensure that mental health-related absences are recorded accurately and fairly. Absence records should not automatically trigger disciplinary action if the employee’s absences are linked to a disability under the Equality Act. Employers should consider each case individually and ensure that they are taking the necessary steps to support the employee rather than penalise them for their condition. 

Avoiding Common Legal Pitfalls 


Employers must be cautious not to penalise employees for mental health-related absences, as this could lead to legal consequences, such as claims of discrimination, unfair dismissal, or failure to make reasonable adjustments. Here are some common pitfalls to avoid: 


  1. Unfair Dismissal
    Dismissing an employee due to mental health-related absences without exploring reasonable adjustments or offering adequate support could lead to a claim for unfair dismissal. Employers must demonstrate that they have made reasonable efforts to support the employee before considering termination. 
  2. Disability Discrimination
    Mental health conditions can be classified as disabilities under the Equality Act, and failure to make reasonable adjustments or treating the employee less favourably because of their absences could result in a discrimination claim. Employers must ensure that they are taking all necessary steps to support the employee and avoid unfair treatment. 
  3. Failure to Make Reasonable Adjustments
    Employers who fail to make reasonable adjustments for employees with mental health conditions may face legal action. It is critical to assess each employee’s needs on a case-by-case basis and provide the necessary accommodations to help them manage their condition. 



Conclusion 

Handling mental health-related absences requires a compassionate and legally compliant approach. By maintaining open communication, providing access to support, making reasonable adjustments, and following the legal framework, employers can effectively manage mental health-related absences while supporting employee wellbeing. As World Mental Health Day approaches, employers should take the opportunity to review their policies and ensure they are meeting their obligations under UK law. 

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.


We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.



Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.


This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

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