Mental health problems and the threat of suicide are complex issues that can be difficult to manage in the workplace. As one in four people will be affected by mental health issues at some point in their lives, it is important that employers clearly understand the importance of their role in helping an employee with mental health problems.
Often employers hold negative opinions towards people with mental health difficulties. This is normally because they do not understand the issues involved and are unsure of what role they are expected to play.
It can be difficult for employers when confronted with workplace scenarios such as:
- An employee inexplicably starts crying during a normal work conversation.
- An employee is behaving erratically in the workplace and work colleagues are complaining.
- An employee’s performance deteriorates because of what may be a mental illness.
- An employee, going through a performance, grievance or disciplinary process, threatens suicide or discloses that they are mentally unwell.
These are all potential health issues because health includes mental health. Acceptance of this represents a departure from the historical norm of thinking of health in purely physical terms.
As far back as 2006 this more holistic view of health was recognised by a workplace health and well-being strategy devised by an expert group at the invitation of the Health and Safety Authority(HSA). Based in part on this realisation, the Government has developed “policies to protect and promote the health of the working-age population. Employers, having a duty of care to their employees, comply with these. In their turn, employees have a responsibility to cooperate with their employer in these matters.”
That duty of care can and should be an anchor for employers in their efforts to both prevent and deal with mental health issues in their workplaces.
The threat of suicide is the most acute of the above scenarios. Suicide can be a painful and difficult subject to discuss yet once disclosed to the employer, the employer must act. The employer should in these circumstances suspend the disciplinary, grievance or performance process immediately, send the employee home or to a GP, and offer the employee counselling.
There is no legal obligation on the part of the employer to pay the employee – but the humane course of action would be to continue to pay the person – at least initially. But the employer should also be careful to offer no guarantee that this will continue indefinitely or outside the terms of the Company’s sick leave payment policy.
Naturally, the disciplinary, grievance or performance management process should only resume once the employer has received confirmation from a medical practitioner that the employee is fit to be at work and engage in the process.
What though if the situation is less acute? What if the employer sees a pattern of deteriorating performance and suspects that this may be happening because of a mental health problem? In such a case the employer needs to determine if this has occurred as a result of work. If “yes”, the employer needs to consider if the employer is at fault. For example, did the employee speak up about something but get ignored? Was there a flawed or absent grievance or dignity at work procedure? If there is a procedure, did the employer fail to follow their own procedure?
Where an employee alleges that their mental health problems have been caused by overwork, bullying, harassment or other conduct of the employer, or an employer suspects that this may be the case, the employer is obliged to investigate the matter. The investigation would invariably involve obtaining an independent medical opinion and would seek to establish whether the mental health condition was, in fact, caused by work-related matters.
If a causal link is established then the employer must take steps to eliminate or control the underlying problem. Options could include:
- Hiring additional resources
- Providing additional training
- Determining if the employee needs time off to recover
- Providing access to counselling
- Reducing workload and responsibility for an agreed period of time
- Reducing working hours over an agreed period of time
- Seeking an independent medical opinion on the employee’s fitness to attend work
The main message here is that the employer should be proactive and deal properly with such situations because a failure to do so could result in a personal injury claim against the employer. For legal purposes, stress becomes an injury when the employee develops a recognised illness from work-related factors.
Sick Leave policies are useful in that they help employers properly manage sickness absences by providing guidance on what steps should be taken and when, and also help ensure that all employees are treated consistently.
A sick leave policy, if it exists and if it is framed correctly, should give an employer the right to refer employees for an independent medical assessment. The assessment type would be of the employer’s choosing.
If the employer has a proper sick leave policy, that includes reserving the right to send employees for an independent medical assessment, then the employee is obliged to attend. Their consent is not required as it is already a term and condition of their employment.
However, if the employer does not reserve the right – be that because they have no sick leave policy or because the policy makes no mention of such assessments, then the employee is not obliged to attend. Their consent is required. However, they may still choose to attend if the employer deals with the situation humanely and reasonably.
It is always the prudent course of action to seek to refer the employee – and the employer should do this in writing so that there is a paper trail. If the employee refuses to attend an appointment at the request of the employer, the employer should continue to ask them – again in writing. The paper trail could be very important if the employee later brings a case, for example, for constructive dismissal.
Fundamentally, as a 2009 HSA guide to employers on work-related stress says, “each employer has an obligation to ensure that, as far as is reasonably practicable, the employees he or she employs are not endangered by working for them.”
This is a complex area and it is important to seek early advice if you become aware of a problem. To get expert guidance in the area of managing mental health issues in the workplace call Mary Cullen, Patrick Foley or Liam Barton on 056 770 1060 or email firstname.lastname@example.org