Employers must act quickly on mental illness
The World Health Organisation estimates that depression will be the second biggest cause of disability in the world by 2020. This will have a significant impact on our workplaces and can mean new challenges for employers in terms of costs, increased absences, sick pay, the need to hire temporary replacements, health and safety issues and liability should the mental illness arise from work-related causes.
When confronted with an employee who has a mental health issue, an employer needs to ask whether the condition is work-related or external. If it is caused by work-related stress, then this raises issues of liability.
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 endeavour to reduce the risk associated with that problem.
Under the Safety, Health and Welfare at Work Act 2005, an employer has a duty to reduce risks to employees. Employers also have a duty of care towards employees under common law.
The employee should be referred to the employer's grievance process 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 route within that process.
If the informal route is chosen, this may include employee relations counselling and mediation. If the formal route is chosen, then the employer will need to investigate the complaint to ascertain if the behaviour did occur. If the complaint is upheld, then the employer may be required to discipline the bully and consider mediation.
Ensuring the above procedures in place, and that they are correctly followed, will assist the employer in defending any claim.
Personal injury and breaches of health and safety legislation claims could be brought against the employer if they do not deal with the matter. An employee could also resign and claim they were constructively dismissed.
In respect of any mental illness, it is essential that the employee gets support from their employer to help with early diagnosis and timely treatment. Managers and HR personnel should be trained on how to recognise early signs. Notes should be kept of meetings with the employee, and actions taken, to protect the organisation in the event of a claim.
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 deciding to let an employee go. The Employment Equality Acts 1998-2011 prohibit discrimination on the grounds of disability.
Employees should speak to a trusted HR person or manager as soon as they know there is a problem. This should then lead to a discussion on risk assessment and appropriate supports.
Employers and employees should maintain communications if an employee is out sick. Overall, the most important element for both to remember is that open communication is key.
Linda Hynes is an associate with Leman Solicitors, specialising in employment law. www.leman.ie