Stress-related sickness absence and disability

Section 15 of the EA 2010 introduced a new concept of “discrimination because of something arising in consequence of” a person’s disability. Under this provision, unless an employer can objectively justify the treatment, they will discriminate against a disabled person if they treat that person unfavourably because of something “arising in consequence of” the employee’s disability. This might include, for example, terminating a person’s employment following a period of stress-related absence. The employer has a defence if it can show that it did not know, and could not reasonably have been expected to know, that the employee had the disability.

There are a few practical points for reps to note about this right in the context of work-related stress, in particular, stress-related absence:

A cautious employer will be very wary of dismissing an employee with a long-term mental health condition, especially if there is any suggestion that it has been caused or exacerbated by work. Reps should therefore talk to workers about the benefits of being as open as practically possible with their employer about their condition, including sharing medical evidence with the employer where possible.

Practical arrangements should be agreed and put in place to make sure sensitive personal information about the employee is handled appropriately. For example, the employee could agree that a rehabilitation team made up of the safety rep, an occupational health adviser, if available, an HR adviser and his or her line manager, can have access to medical information about his or her condition, to enable a rehabilitation plan to be put together, discussed and implemented.

The employer has a defence if it can show that the decision to dismiss was objectively justified. In practice, an employer will not be able to objectively justify a decision to dismiss until it has met its statutory duty to make all reasonable adjustments to accommodate the condition. Although an employee on long-term sickness absence because of work-related stress is not obliged to suggest adjustments, it is a good idea to engage proactively with the employer to help develop a collaborative return-to-work plan and to suggest sensible adjustments, with the support of the union rep.