So far in 2020, all the training that I have been asked to do has centred around mental health in the workplace, which is undoubtedly a positive thing with employers and managers wanting to take this issue more seriously.
One of the challenges employers often face where somebody admits to mental ill health, such as depression, is deciding what to do with the person’s job responsibilities, if they are not coping and fully able to perform them. An employer is likely to be aware of their duty to make reasonable adjustments and where stress risk assessments are used, it may become clear that workload is an issue and that there is a need to address this. There may also be a period of phased return to work with a desire to support the individual concerned. Care has to be taken though, about how this is done, which a recent case illustrates.
The case involved an investment trader in the City who had become mentally unwell after working excessive hours. Whilst the employee was absent from work, the Managing Director told the person’s team that he would be co-heading their department and taking responsibility. This effectively permanently removed management responsibility from the sick employee and was deemed an act of less favourable treatment. What the employer should have done was emphasised that this was a ‘temporary measure’ until the employee was able to return to these full duties.
Instead, what the Managing Director did, when the employee was ready to return to work, was tell him he wanted to keep him “in some capacity”, intended I am sure, to reassure him that he was not expected to take on an onerous workload until he was well. There followed discussions about restructuring the department and splitting out trading and sales functions.
As often happens with these sorts of cases, the employee probably attempted to return to work too soon and within a month of doing so, had what he described as a ‘bit of a meltdown’. This prompted a longer period of time off. This time, after a month or so, he received an email to his personal email address in which the formal restructure was announced, which effectively communicated to him that somebody else was now co-heading the team, and taking on his former role. Unsurprisingly, the employee who had not been consulted about any of this, felt undermined, humiliated and considerably distressed (his words). As a result, he filed a formal grievance which the employer dismissed suggesting workplace mediation. The employer presented the restructuring as an honest attempt to develop the department and to include the employee as a leader in that department. The employee issued a discrimination complaint and the Judge said that the mental health disability clearly influenced the decision to make the new manager co-head and that this was less favourable treatment.
Whilst I have some sympathy for the employer who undoubtedly needed to be able to run the team in the employee’s absence, to go ahead without involving the employee and effectively displacing him is a detrimental act – what they should have done is made it a temporary measure whilst they were awaiting his return, and should have made that very clear to everybody, including communicating to the team that they very much were working towards the individual returning and being able to resume those duties in the future. Clearly there may well have become a point in the future where perhaps he was unable to return and the arrangements could have been made more permanent, but rushing into it in this way was problematic.