Mental Health Sick Leave & Employment Law

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Health Assured team

03 February 2020

There’s quite the stigma still when it comes to mental health.

According to the Stevenson/Farmer review, more than 300,000 people with a long term mental health condition lose their jobs each year. 15% of people at work have symptoms of an existing mental health condition. And poor mental health at work costs the economy as much as £99 billion a year.

Employers need to know how to deal with mental health absence—both their legal requirements and their ethical duty of care.

Understanding the laws and obligations around mental health leave from work can be complex—but here is a guide to the basics.


How does mental health sick leave work?

First up, it’s a good idea to understand the issues likely to mean people take absence due to mental health. The three most common are:

  • Stress
  • Depression
  • Anxiety

These are extremely common in employees from all walks of life. It’s possible that someone working with you—or even you yourself—is suffering one of these issues to the extent that they should take some time off.

Sometimes, people just need a day to clear the cobwebs. See the case of Madalyn Parker, and her bosses’ response to her taking a couple of days off. That’s the perfect attitude to have—be understanding that mental health issues are just as severe as physical.

Of course, under mental health employment law, you’re not actually obliged to accept this as a reason. But it’s a positive example if you do, and gives a clear signal that you care.


How do you deal with mental health absence?

As we say—the same way that you do an absence for physical illness.

This means the rules around long-term sick leave for mental health reasons are the same. After seven days, employees must provide a doctor’s fit note stating that they’re not fit for work. If the absence is fewer than seven days, the note isn’t necessary—the employer can ask for self-certification in a return to work interview when the employee is back.

In terms of mental health at work law, employers have a duty of care. This means they must do everything they reasonably can to support the health, safety and wellbeing of their employees, including:

  • Making sure the workplace is safe
  • Protecting staff from discrimination
  • Carrying out risk assessments

Mental health issues can be considered a disability, as long as the following apply:

  • They have a ‘substantial adverse effect’ on the life of an employee
  • They last at least 12 months or are expected to
  • They affect an employee’s ability to do their normal day-to-day activities

In all cases of disability, employers must make reasonable adjustments in order to accommodate them. This doesn’t have to mean grand, sweeping changes—just small things, like more frequent rest breaks, that make life a little easier.


Extended leave under the Mental Health Act

The Mental Health Act (1983) covers the assessment, treatment and rights of people with a mental health disorder. People detained under the Mental Health Act need urgent treatment for a mental health disorder and are at risk of harm to themselves or others.

When these people are detained, they may need a long stay in hospital. This is treated in exactly the same way legally as a stay in hospital due to a physical ailment, and your rights and obligations as an employer are the same—be sure to carefully follow the Acas Code of Practice.

In these serious cases, a mental health leave of absence in the UK can be over a long time. You can dismiss an employee with a persistent illness that makes it impossible to do their job—and detainment certainly counts.


Leaving work due to mental health

If you’re an employee suffering mental health issues, you might be thinking about resigning. This is a touch drastic, and it’s worth exploring your options before you do so. Consider this: would you stay in your job if the problem was resolved?

It’s worth requesting a meeting with your employer and talking through your problem. Discuss openly and honestly your feelings, your issues and your requests—remember, reasonable adjustments can be made.


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