Mythbuster – You Can’t Call in Sick for Poor Mental Health

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There’s still stigma around mental health in the workplace. This means employees who might want to call in sick to take a mental health day are often dissuaded from doing so. They have good reason to doubt. Some employers don’t believe an employee can call in sick for mental health reasons. In this article, the MIA’s trusted business support helpline partner, Croner, provides legal guidance on this issue…

However, a mental health issue can be just as damaging—if not more so—than a physical ailment. That’s why 12.8 million working days were lost due to stress, depression or anxiety in 2019.

Luckily, there is legal guidance on this issue, and we’re here to tell you what it is.

January Blues

The first month of the year is generally considered to be the most depressing of the year. It’s understandable why. It’s still dark. The joy of Christmas is over, and New Year’s resolutions have started to break down.

January is also host to Blue Monday, supposedly the most depressing day of the year. But for a lot of people, their struggle isn’t limited to one day a year. Whatever your feelings about the awareness day, it does do one thing: raise awareness.

And so, you might see an increase in the number of people taking time off for mental health in January.

But can employees legally do this?

The short answer: yes.

Why?

Obviously, every person’s situation is different. But legally, under the Equality Act 2010, any mental health condition with long-term or substantial effects is a disability.

If a doctor considers the individual’s situation severe enough to sign them off sick, then they are protected.

The employee also enjoys protection against discrimination relating to:

  • Pay
  • Terms & conditions
  • Sickness absence
  • Training & development
  • Dismissal
  • Promotion
  • Redundancy

What if the employee is well enough to leave the house?

Many employees suffering from mental health issues worry about being ‘caught out’ if they leave the house. But, unlike many physical illnesses or injuries, it’s possible for the individual to leave the house. In some cases, going outside can be part of their recovery.

So, if you’re provided with evidence of them out and about, don’t jump on the phone or start writing an angry email.

Understandably, if the employee is off work for a long period of time, and you’ve been unable to contact them, you might become concerned. Particularly if you’re struggling without them in the workplace.

Fortunately, there are steps you can take.

What if the employee is off work long-term?

Capability/Performance is one of the five fair reasons for dismissal.

Some employers might jump to this solution right away. However, it should always be a last resort. And, if you fail to attempt alternative measure you may still face a case of unfair dismissal.

Alternatives include:

  • Changing the job role to help accommodate the employee
  • Introduce a phased return to work
  • Making other reasonable adjustments

If the individual refuses to attend multiple meetings or severs all contact, then you might start to look at a dismissal.

How big of a problem is this?

There are a number of statistics that can communicate the extent of the issue. A quick google can show you most of them. However, an important one to raise is this:

“While around three quarters, or 77 per cent, said they would be truthfully about physical sickness or injury, such as back pain, flu or an accidental injury, only two in five, or 39 per cent, would tell the truth if they had to call in sick due to stress, anxiety or depression.” – AXA PPP Healthcare

This proves that your employees may already be taking mental health days. They’re just disguising them as something else.

How do I help?

Being understanding and supportive is often the best approach when managing employees with mental health issues. It’s not unheard of for staff to take advantage, but they’re usually not. Make sure to check in with the employee regularly, and let them know you’re willing to help with anything that might make their return to work easier.

Refusing to acknowledge a sick call due to mental health simply isn’t an option. You might catch an employee out on a lie, but you’re more likely to find yourself with a discrimination claim.

Expert support

For any advice or guidance on managing these incidents, or if you have wider HR queries, all MIA members have free access to Croner’s member support helpline. Email alice@mia.org.uk or call 01403 800500 for the exclusive Business Support Helpline scheme number.

www.croner.co.uk