firm news

Emma O'Connor
Emma O'Connor,
Wellbeing at work – why it needs to be on the HR agenda
26 October 2017

Mental health issues, long term absence and stress at work are big news stories but why is it important that organisations focus on these issues? We consider these issues and focus on the case of  O'Brien v Bolton St Catherine's Academy [2017]

We all know that mental health issues, long term absence and “wellbeing” has been a hot topic in the media recently and also the courts; however, why should it be an issue for organisations?

Did you know that according to statistics from The Prince’s Trust for 2016, mental health absence cost the UK over £70 billion a year and 15.2 million lost work days. One in every 6 people also has a diagnosable mental health condition. Demographic changes within our workforces, increased competition, uncertainty about jobs and changing workforce expectations mean employers are at the forefront of managing wellbeing at work issues. Research also tells us that stress at work is exacerbated by the culture of the workplace with ‘presenteeism’ often being cited as a key area for concern. Mental health conditions also lead to complaints and sometimes employment tribunal claims of disability discrimination too.

Often in cases of ill health and absence, we rely on medical evidence to support a decision or a strategy to manage an employee back to work or when to make a decision as to their future employment.  However, what happens in situations where there is competing or new medical evidence? How long do employers have to wait? The Court of Appeal’s decision in O’Brien v Bolton St Catherine’s Academy reflects a growing trend in a number of cases based on discrimination arising from disability. In December 2011, Ms O’Brien went off sick suffering from stress at work and was subsequently diagnosed with anxiety, depression and post-traumatic stress disorder. After being absent for over a year, the employer dismissed Ms O’Brien for medical incapacity. At the time it took the decision there was no evidence to suggest that she would be able to return to work in the near future. However, during the internal appeal hearing, Ms O’Brien presented her employer with medical evidence indicating that she was fit to return to work. The appeal panel was not convinced by this and upheld the decision to end her employment. Although the Court described this as a ‘borderline’ case, it found that the employer had acted unreasonably in disregarding Mrs O’Brien’s evidence and not seeking a fresh medical assessment. It had acted too quickly in dismissing.

But what are the issues and how can HR put these at the top of their agenda?

Policies, processes and a fair sick pay system can play a big part in the management of absence but these can only go so far. For there to be a change, there must be a strategic shift towards managing absence in a more holistic way and this comes from the top. Managing absence, from our experience, can be complicated with many competing factors and one size does not always fit all. However, what is key is a shifting focus on getting employees back to work and managing sickness absence early on, for example, working with your external advisers, be it occupational health, clinicians, insurers or lawyers, to ascertain and understand the issues and to plan a path back to work. Also, as we see above, reassessing medical evidence too is important. Your line managers are key to this process, often being the first port of call in sickness absence.

Need help with an absence issues? Want to put wellbeing at the top of your HR. agenda? Want to understand what occupational health advisers need from you (and what you should expect from them?) join us for our “Wellbeing at Work – Mental Health First Aid for HR” training course on 16 November (9.30-12.30) where you can hear from our lawyers and also an occupational health adviser about how to manage absence at work effectively.  To find out more or book your place, please click HERE.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

award winning law firm

Boyes Turner are proud to have received the following awards and recognition.