Mental Health, Employment and Discrimination

The Health and Safety Executive has estimated that 13.8 million working days are lost due to work related stress each year with an annual cost to employers of £13 billion. Many more working days are lost to other mental health illnesses.

Statistics like these prompted the government to announce recently that it would spend £5 million to increase the number of employment advisers in GPs surgeries to help people with stress and other mental health conditions stay in work.

These statistics, however stark, mask the reality of individual cases in which employers and employees seek to address the impact of these illnesses in the workplace. It may be difficult for employers to manage long term absences (or shorter term but persistent absences), while employees suffering from illness do not need additional worries about the security of their job. In such cases, how does the law balance the interests of employers and employees?

Absence, Dismissal and the DDA

During a long term absence, the employer and employee should maintain contact, focussing on the employee’s wellbeing and prognosis for a return to work. Where an employee is not able to return to work after a reasonable time, dismissal may be lawful on the ground that the employee is incapable of performing his work. However, a tribunal will expect the employer to have followed a fair procedure (typically including the consideration of medical evidence) before dismissing an employee for absence.

In addition to the law of unfair dismissal, employees suffering from mental illness may be protected by the Disability Discrimination Act 1995 (DDA). The DDA defines a disabled person as an individual who suffers a physical or mental impairment which has a substantial and long term effect on the ability to undertake day-to-day activities. The focus of this test is on the impact of an impairment, rather than whether there is an identifiable or well-recognised mental illness. Accordingly, there is a broad scope for a tribunal to conclude that an employee falls within the scope of the DDA.

Where the DDA applies, the employer will be obliged to make reasonable adjustments. Every case will depend on its facts, but possible adjustments in cases of mental illness or stress may include altering the hours of work, permitting work from home or re-allocating some duties. In addition, an employer must not treat a disabled employee less favourably for a reason relating to the disability unless this can be justified. A typical example is the dismissal of an employee because of an absence caused by a disability. The DDA also prohibits direct discrimination and harassment on the grounds of disability.

Personal Injury

The DDA and unfair dismissal fall squarely within the realms of employment law. But stress and mental health in the workplace aren’t just confined to these issues. There is increasing personal injury litigation about work related stress and mental illness. These claims tend to arise in three different (but often related) contexts. An employee may claim damages for personal injury under common law principles (such as the duty to take reasonable care or the implied term of trust and confidence), provided the illness amounts to psychiatric injury rather than mere occupational stress. Such a liability typically arises because workload has caused the illness or because the employer has failed to take sufficient steps to protect the employee against stress (for a recent case, see Bristol City Council v Deadman [2007]).

Secondly, in cases of harassment or discrimination on the grounds of gender, race, etc the employee may bring a claim for discrimination in the tribunals and seek damages for any personal injury caused by that discrimination.

Thirdly, in cases of harassment the employer may also be vicariously liable under the Protection from Harassment Act 1997.

As this brief survey suggests, the legal issues that arise as a result of mental health and stress in the workplace reflect an approach typical in employment law. There is an attempt to balance the rights and obligations of employers and employees. Exactly where that balance is struck is not always clear (or may not be clear until a court or tribunal has adjudicated on a claim). What is clear is that there are some important protections for employees. Both employers and employees should be aware of them.

Andrew Blake is a barrister at 11KBW.