As an employer, you are entitled to manage employee absence, and you shouldn’t be afraid of conditions marked as depression, anxiety and stress. Whilst most employers support and assist employees with these conditions, unfortunately, they will experience a few employees (aka ‘bad eggs’) who use these terms to suit their own needs with the belief that their managers cannot do anything about their absence. Some employers do not have sufficient knowledge to know what they can and can’t do when managing these conditions. This blog provides useful insights for employers, so they can undertake effective management of such conditions.
So, what is it about these conditions that causes concern for employers? Is it because they may potentially amount to a disability and, therefore, any management of the employee may lead to a claim of disability discrimination? We have found this to be the most common reason for inefficient management of depression, anxiety and stress.
What is discrimination?
For the purpose of this blog, the interpretation of “discrimination” focuses on employees only, although it’s important to understand that discrimination legislation covers more than just employees. In a nutshell, when an employer treats an employee differently (in a negative way) because of a protected characteristic this could amount to discrimination. There is no minimum length of service required for an employee to claim discrimination and job applicants could also claim against the company.
As discrimination awards are uncapped, any amount of money could be awarded to the employee in a claim against the company. However, there are many factors that determine the amount, so there’s no need to panic just yet. There are several forms of discrimination, however, in this blog we will refer to “disability discrimination”.
Under the Equality Act 2010, disability discrimination is defined as an individual having a physical or mental impairment, which has a substantial and long-term adverse effect on the individual’s ability to carry out their normal day-to-day activities.
As an employer, there are important key words you should consider:
- Impairment – is their (the employee) ability to carry out normal, everyday activities impaired?
- Substantial – is this more than a minor or trivial effect?
- Long term – this is defined as a period of 12 months.
- Normal, day-to-day activities – the guidance states those activities to be sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting; or carrying everyday objects, such as a vacuum cleaner.
Some conditions are automatically deemed to be a disability, such as HIV infection, cancer or multiple sclerosis. A more detailed description of disability discrimination is beyond the scope of this blog, however, for further information and working examples, please refer to the Equality Act 2010 Guidance.
Depression, anxiety and stress claims by employees
It’s vital that employees who present with these conditions are managed fairly and supported as much as possible. Employers must manage all absence consistently regardless of the reason. However, the fear of managing these conditions results in inefficiencies which some ruthless employees pick up on and use to their own advantage. These employees use these conditions inappropriately to manipulate their employer by having sick days, knowing they are unlikely to be penalised by their employer.
As an employer, how many times have you heard an employee say, “I have depression, so I can’t work/do/attend etc”? How often have you heard, “I have work-related stress”? Do these sayings ring a bell?
Have you experienced employees who go off sick with depression, anxiety and stress during a disciplinary process? Do you believe the employee thinks this will help them to avoid the process, preventing you from issuing them with a disciplinary warning?
Identifying genuine employee absences
When you are presented with these conditions, you must carefully consider the details available to you and investigate as much as reasonably possible. The last thing you would want to do is to cause an employee to feel stressed or anxious – or worse, to become depressed as a result of your heavy-handed management. Unless you have conclusive evidence that an absence is not genuine then treat it as such. Remember, you are entitled to manage employee absence for these conditions but fairly!
As part of your absence management procedure, identify the following:
- Does the employee have a high level of absence?
- Are those absences generally for less than 7 days? (from day 8 a GP fit note is required)
- Has the employee had more than 2 periods of absence due to depression, anxiety and stress?
- If yes to the point above, are they more or less than 7 days?
Given employees must present a fit note after 7 days of absence, they must then see the GP. If the employee claims their absence to be as a result of depression, anxiety and stress when in fact it’s not then it’s unlikely they will visit the GP for a fit note.
- Are you concerned that the employee may be covering their true reason for absence with these conditions (possibly in the hope their absence won’t be challenged)?
- Have you considered that the employee may have an addiction problem?
- Are you concerned that Monday is often a day of absence? If so, this could potentially be due to excess alcohol or other substances being used over the weekend, resulting in the employee not being fit for work and not wanting to declare this.
- Are you concerned about domestic violence?
- If it’s work-related stress – then investigate this further by discussing it with the employee and check the information presented to you. Also consider if there’s a link between increased absence levels and reduced performance levels.
Return to work interview
In your return to work interview with the employee, ask what has caused the depression, anxiety or stress. Clarify if they have declared it on a medical questionnaire and if not, why not. Determine if the GP has actually examined them and made a medical diagnosis of one of these conditions or if the employee has self-diagnosed. Ask if they have been prescribed medication for one of these conditions and, if so, how long they have been on it. Ask if they are receiving any other support and also how are they feeling now. If the answer to these points show there’s no medication, or indeed the employee has not even seen the GP, then continue to manage as normal. If their levels of absence are too high you can start a formal procedure against them with minimal risk of any disability discrimination claim. The issue is the number of days absent; don’t let employees distract you with their reasons for the absence.
However, if you are concerned about the employee, then support them whilst managing the absence levels. Have a discussion to see how you can help them improve their attendance levels, ask if they have had a recent review with the GP. Identify what is triggering this bout of depression, anxiety and stress. You may consider amended hours, removing some tasks to lighten the workload or remove the stress of deadlines, or further training. Unless the employee has a disability, you are not required to consider these options, however, it is good practice. Consider the longer-term engagement of the employee; less absence means less management, more productivity, and less cost to the business.
If performance and/or attendance become an issue with an employee that has a disability, then you must manage it through a capability procedure. If it’s work-related stress, this can be managed too, and you should consider whether it could give rise to a grievance.
Managing the conditions of stress, anxiety and depression
Depression, anxiety and stress can amount to mental health issues which are covered by the Equality Act 2010. It is worthwhile nominating someone in your business to undertake training to become a Mental Health First Aider, especially due to the recent rise in elevated stress and anxiety levels as a result of Covid-19. For more information, please visit our Mental Health in the Workplace page.
Further information can be found on the following websites:
Mind – mental health charity
Beating Addictions – drug and alcohol addiction
Refuge – domestic violence
Do you require HR Advice on employee absences or how to deal with stress, anxiety and depression in the workplace? Please call us today on 01455 231982 or 07716 91272, or email firstname.lastname@example.org and we will respond as soon as possible.