Mental illnesses in employees can cause problems for employers in terms of costs, increased absences, sick pay, the need to hire temporary replacements, health and safety issues and potential liability should the mental illness arise from work related causes. The World Health Organisation estimates that depression will be the second biggest cause of disability in the world by the year 2020. This will have a significant impact on our workplaces.

When confronted with an employee who has a mental health issue, the first question an employer needs to ask is whether the condition is work-related or external to work. If the mental illness is caused by work related stress then this raises issues of liability for the employer. If this happens an employer should seek information on what exactly within the workplace is leading the employee to suffer from the mental illness and the employer should endeavor to reduce the risk associated with that problem. Under the Safety, Health and Welfare at Work Act 2005, an employer has a positive duty to reduce risks to employees and this extends to both physical and psychological risks. Employers also have a duty of care towards their employees under common law. The employee should be referred to the employer’s grievance process where appropriate in order that the employer can understand and deal with the matter fully. If the work related stress is as a result of alleged bullying then the employee should be referred to the employer’s anti-bullying policy. The employee should have the option of utilising either an informal or formal option within that process. If the informal route is chosen this may include options such as employee relations counseling and mediation. Both can led to successful resolution of interpersonal issues that have led to stress. If the formal route is chosen then the employer will need to investigate the complaint to ascertain if the behavior did occur. If the complaint is upheld then the employer may be required to discipline the bully and consider mediation between the parties to facilitate the employee in returning to work. Ensuring that the employer has the above procedures in place and follows them correctly, will assist the employer in defending any claim. Personal injury and breaches of health and safety legislation claims could be brought against the employer in the event that they do not deal with the matter. Alternatively an employee could resign and claim that they were constructively dismissed – this is a resignation where the employee has no option but to resign as a result of the unreasonable conduct of the employer.

In respect of any mental illness, it is essential that the employee gets support from their employer to help with early diagnosis of the illness and timely treatment. This is beneficial to both parties as it means that the employee is likely to be able to return to regular work sooner. This will also help in avoiding the ‘breakdown’ situation where an employee is out of work indefinitely. Therefore managers and HR personnel should be trained on how to recognise the early signs that an employee may be suffering from a mental illness. Notes should be kept of all meetings with the employee and any actions taken in order to protect the organisation in the event of a claim. It may also be useful to advise the employee that they can bring a trusted colleague to meetings if they are nervous about discussing the issue. The employer should assure the employee that confidentiality will be maintained and that the purpose of the meeting is to try and provide the employee with the support they need.

In respect of recruitment, it is important that current or previous mental illnesses are not taken into account when deciding not to hire a candidate without a thorough review of the situation. The same is true in respect of deciding to let an employee go because they are suffering from a mental illness. In a See Change public attitudes survey in 2010, 47% of respondents felt that a diagnosis of a mental health problem would have a negative effect on their job and career prospects and their relationship with their work colleagues. The Employment Equality Acts 1998-2011 expressly prohibit discrimination on the grounds of disability which includes mental illnesses. Employers are obliged to make reasonable accommodations to accommodate a person suffering from a disability in the workplace. Appropriate reasonable accommodation can only be found on consultation with the employee and it is only after significant attempts to accommodate the person’s disability have been tried to no avail should the employer consider disciplinary action for performance issues or dismissal on the grounds of capability. Employer’s cannot just decide that an employee is not capable of doing a job because they suffer from a mental illness without a thorough review of what accommodations may be available. Reasonable accommodations for mental illness can include:

• Employee counseling within the workplace or access to an employee assistance programme;
• Adjusting attendance hours or work load;
• Time off to attend medical appointments;
• Additional training.

Employees should speak to a trusted HR person or manager as soon as they know there is a problem that they will need employer support on. This should then lead to a discussion on risk assessment and appropriate long term or short term supports available to the employee. If the employer offers an Employee Assistance Programme the employee should avail of this service.

Employers and employees should maintain communications if an employee is out sick. Employees should ensure they adhere to any sick leave policies that are in place. Overall the most important element for employees and employers to remember is that open communication is key to helping manage the employment relationship in these circumstances.

This article also appeared in the Irish Independent which is available to read here.

If you would like any further information on these changes or require assistance reviewing your current policies, please contact Siobhra Rush or Linda Hynes of the Employment Law Team on 01 639 3000.

Disclaimer

This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.