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Expert Opinion

Mental health sick days: Everything you need to know as an employer

Laura Kearsley, Partner and Solicitor in the Employment Law Team at Nelsons

Employers lost more than 17.5 million days in mental health sickness absence – according to the Office for National Statistics (ONS).

The most up to date report showed that mental health conditions (including stress, depression and anxiety) was one of the top four reasons for employee absence – accounting for 12.4% of all sick days recorded in 2018.

Laura Kearsley, Partner and Solicitor in the Employment Law Team at Nelsons, answers some of the most frequently asked questions employers receive about mental health sick days.

Do I have to pay my employee for a mental health sick day?

“Despite a growing awareness around mental health in the workplace, employers are still finding themselves unsure of how to approach mental health with employees, particularly absences due to mental health.

“If your employee takes time off with a mental health issue, this should be treated like any other sick day in accordance with your sick pay policy and – if applicable – the statutory sick pay scheme.”

What is a mental health sick day?

“This is just the same as a sick day for any physical illness or condition, it is just related to an employee’s mental health.”

Should I record mental health sick days differently?

“Employers should keep a record of all sickness absence regardless of the cause as this is an important attendance management tool.

“Where an employee is regarded as physically or mentally disabled, then it is a good idea for the employer to record disability related absence alongside other absence so that this can be considered in any capability processes.

“It is also a good idea for an employer to monitor mental health sickness absence in case any patterns or trends emerge, which the employer might want to consider or explore with the employee as part of their duty of care.

“In addition, monitoring absence trends across an organisation can be a useful tool for an employer to determine whether there are any patterns or issues in any particular branch or department that might require consideration.”

Can I dismiss or discipline someone if absence due to mental health is starting to impact on their work?

“Ultimately, employers are entitled to expect a minimum level of attendance from employees and if long term or repeated sporadic absence is having an impact then employers can consider this in the course of fully informed capability proceedings.

“This might involve the employer taking advice from the employee’s doctor or specialist or seeking advice from an occupational health practitioner.

“This can also be the case if mental health issues (rather than absence) are making it difficult for the employee to meet the standards required for their role.

“However, before any drastic action can be taken, the employer will need to consider whether there are changes they can make to improve attendance or performance, or whether there is support they can offer and whether these measures are reasonable.

“If an employee is classed as disabled, the employer has a duty to make reasonable adjustments to accommodate the disabled person.”

How should I communicate an employee absence due to mental health with the wider workforce?

“Employers can certainly pass on any reasons for absence to any senior members of staff that need to know. However, when disclosing absence to the wider team, it is a good idea to ask the employee when they report their sickness what explanation they would like you to share. Otherwise, less is more, and the employer should not reveal any unnecessary detail and try to limit gossip or speculation.”

Can I request employees provide greater notice for mental health sick days?

“In many cases, employees will not be aware in advance that they are going to need time off. In some cases however, employees may be aware of symptoms or feelings that indicate they are likely to need time off and in these cases, as part of understanding the issues and obtaining medical information about it, they can agree notification procedures with the employee.”

If an employee is off due to mental health issue, can I contact them?

“There is no rule to say that an employer shouldn’t contact an employee who is off sick to check on them or to discuss any work issues; in fact, employers are under a duty of care to check in with employees who are absent.

“Mental health related absence is no different. The only exception to this to consider is where an employee is off with work-related stress. In such cases, employers can still make contact but should be careful to make sure that this is done in a way to minimise any additional stress.”

What sort of accommodations do I need to make for employees reporting negative mental health?

“Good employers will be supportive to employees with mental health issues.

“Employers should also monitor employee health generally and consider whether there are issues or causes if multiple employees in any branch or department are reporting issues at the same time.

“Support measures that employers can offer can include access to an Employee Assistance Programme, a telephone helpline for employees to access counsellors.

“If an employee is classed as disabled, the employer has a duty to make reasonable adjustments to accommodate the disabled person. What is reasonable depends on the employer’s size and resources and the impact that the measure would have.”

Where do I stand if an employee is off sick for mental health but I see them tagged on social media doing other activities?

“This can be tricky because unlike with most physical health issues, for mental health issues some leisure activities might be helpful to recovery.”

I think my employee is faking it – what do I do?

“Usually expert medical advice will confirm whether the employee has a mental health issue.  Employers should be very careful in questioning whether a health problem is genuine without any expertise to support that accusation.”

For more information on Nelsons’ employment team, and for help and guidance about getting your workplace policies and procedures up to date, please visit: www.nelsonslaw.co.uk/managing-your-workforce or call 0800 024 1976.