An NHS employee who took 400 days off sick in four years has won their tribunal case on the basis of unfair dismissal and disability discrimination.
It might look like a fairly ordinary enough example of a tribunal ruling for our times: one where management failed to take into account the needs of an employee dealing with mental illness. B
ut the context makes it notable, and a significant warning to HR around expectations and responsibilities. Because the ruling has come at a time when the government is pushing for employers to take on more of a role in getting people back to work and keeping them there.
Policy Initiatives
The ‘Get Britain Working’ policy has signalled a determination to deal with the rising proportion of economically inactive people in the UK, getting more young people, people with disabilities, and those with long-term health conditions back into workplaces. 2.8 million people of working age are currently said to be off work with a long-term illness. In 2023, 53% of these cases involved mental health issues — a 40% increase from 2019. Get Britain Working has an initial £240 million of funding to push through activities to meet its target of a national 80% employment rate.
So we’ve already seen a willingness to try radical ideas. Weight-loss jabs to be made available to the unemployed. Putting ‘job coaches’ into hospitals to help mental health patients work on their CVs and applications and think about how to do better in job interviews. The ‘connect to work’ scheme, offering voluntary employment opportunities to people with disabilities and health conditions.
Policy initiatives have been accompanied by more scrutiny of workplaces and their culture. Why are so many people dropping out of work? What are modern forms of work doing to health, mental and physical? The IPPR think-tank last year called for employers to be fined for not providing a ‘healthy’ work environment.
The recent case involving the NHS provides some pointers to what’s now expected. The employee, a cleaner at a hospital, had been assessed by OH in 2019 and formally confirmed as having ‘disabled’ status in 2019 due to a combination of bipolar disorder, anxiety and depression. The “wealth of medical evidence”, the tribunal decided, had not been taken into account by the line manager and senior managers. A suggestion by the employee that their number of hours could be reduced, while staying in a familiar part of the hospital, was rejected.
At the core of the situation are some thorny, controversial questions. How far can employers be expected to provide an alternative for people who would — until now — have been on sickness or other welfare benefits?
Walking Thin Lines
When it comes to the hugely complex and difficult area of mental health, who makes the decisions on who can work and how? And is it now the responsibility of employers and workplaces to adapt to the needs of individuals rather than for employees to meet the needs of their employer in terms of adaptability and performance?
Absence management means walking some increasingly thin lines, especially when it comes to mental health. Supporting employee mental health doesn’t just happen as a result of making ‘reasonable adjustments’. A line manager can offer as much flexibility in terms of patterns of hours and adaptations as they like — it doesn’t necessarily mean a solution has been found for either side of the relationship.
In other words, it’s really an issue of workplace cultures. There has to be trust and a sense of psychological safety: straightforward attitudes and conversations about fitness to work and how that happens in practice. Some sunny common sense and the basis for open, reasonable discussions. At the moment it can often be a matter of rigid, competing positions that eventually turn into grievances and conflict. Opposing sides who want to ‘win’.
The Get Britain Working campaign makes sense for productivity and growth, and employers will clearly benefit themselves from a general upturn in economic activity. But playing a constructive part in the changes will require something other than formal measures to prevent tribunals and fines.
There has to be resilience and some rigour around facing up to the difficult, sensitive situations involved — so, the people skills, conversation skills and better use of mediation that make for a more open and positive environment where the right decision are made around who’s fit for work.
Paul O'Donnell is Managing Director at workplace relationships specialist CMP, helping organisations to manage conflict at work. Paul has more than two decades of experience in management consultancy and business development.
