Category: Mental Health

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Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

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As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

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lreynolds@refreshinglawltd.co.uk

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Lousha Reynolds
Refreshing Law

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Disability Employment Law Employment Rights Act 1996 Health Conditions Mental Health Reasonable Adjustments Return to Work Sick Pay

Changes and guidance on fit notes for employers and line managers

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The government has just published changes to its fit note guidance for employers and line managers. It even included a handy checklist so that employers can avoid painfully drudging through the lengthy (4,462-word) document. The checklist includes the necessary steps and information that employers should have at their disposal when an employee has been issued a fit note.

Firstly though, what is a fit note? It’s a note from a certified healthcare professional who has determined after consultation with an employee, whether or not they ‘may be fit for work’ or are ‘not fit for work’. A fit note allows employers to discuss with their employees any health conditions that may prevent them from undertaking their work as usual. It also gives employers the chance to have an interactive discussion with their employees to establish tailored measures suited to both parties going forward.

The changes to this guidance as of 2022 state that where these fit notes had previously been required to have a signature of ink, they are now moving forward (as we all are) to accepting just the name and profession of the issuer. This enables the fit notes to be received and sent digitally. The DWP also expanded their accepted list of healthcare professionals who can certify the notes to include nurses, occupational therapists, pharmacists, and physiotherapists. It should be noted that although digital notes are embedded in primary care settings (GP), they are not yet in secondary care settings (hospitals), and so a pre-printed note may still be used by employees recently discharged from hospital.

There are a number of general rules that surround fit notes, so I’ll just outline the important ones to familiarise yourself.

In the first 7 days of sickness, employees can self-certify. If your organisation requires medical evidence within this time, any costs incurred by the employee for accessing a healthcare professional will be yours to cover eg:- where there has been a pattern of absence say on a Monday and Friday and you tell the employee that any further absence on these days will require a fit note.

The length of a fit note can cover a maximum of 3 months at a time during the first 6 months of sickness. Any specific time decided will be determined by the clinical judgement of the healthcare professional.

Private (non-NHS) healthcare professionals can produce reports like a fit note which can be considered. Private medical certificates or the Allied Healthcare Professionals Work Report can be accepted with no further need to obtain a further note.

Fit notes can come in a variety of ways, whether that be computer-generated and printed out, or sent digitally to your employee. Digital fit notes will include a barcode so that they can be scanned by employers and added to sickness records.

Now onto the fitness for work assessment and what that means for employers. The healthcare professional will state whether the employee is fit for work or not, and the length of time that any adaptions are required/the amount of time the employee is unable to work for. If they ‘may be fit to work’, the healthcare professional will give general recommendations on adjustments to be made for the employee to work safely or return to work entirely. These recommendations are not binding and if the recommendations cannot be implemented given the nature of work, the fit note can then be used as evidence for sick procedures.

General adaptions you may choose to explore as an employer include:

  • Phased return to work

  • Altered hours

  • Amended duties

  • Workplace adaptions

While at first glance these fit notes may appear to be potentially obstructive, by supporting your employee to stay or return to work you may actually avoid absence costs and minimise disruption for your organisation. Having an open discussion with your employee about adjustments will serve to create a more trusting work relationship that can only benefit both parties!

Martha Regan
Refreshing Law

 

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Anna Denton-Jones Duty of Care Employment Law Employment Rights Act 1996 HR Mental Health Pay Sick Pay Stress

Are you entitled to withhold SSP?

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You’ve probably noticed wording in your sickness policy that makes it clear if employees don’t comply with your procedure, they risk the payment of Statutory Sick Pay (SSP).

It is not open to an employer to withhold SSP where the employee provides medical evidence from their GP late. For example, you may require the certificate to be given to you on day 8 of absence, and the employee might not get around to giving you a certificate until day 10.

An employer is allowed to not pay SSP if the employee has failed to notify them of the absence, and there is no good reason to cause the delay in notification. For example, the employee is supposed to notify you of their absence on the first day of incapacity – if they didn’t notify you and essentially were absent without leave for the first few days and told you on day 8, then potentially Section 156(2)(a) Social Security Contributions and Benefits Act 1992 applies. So, for example, if the employee had gone AWOL effectively for the first week and then telephoned in, the employer is entitled to withhold for the duration of the delay.

Employers may introduce something more onerous as a matter of contract. For example, that the employee has to report in sick by a particular time on the first day of their absence and thereafter at regular intervals. That cannot override the statutory scheme when it comes to SSP but if more generous contractual sick pay is available, such as payment for the waiting days when SSP doesn’t apply or payment of full pay or something more than SSP, then the employer will be able to follow what they have said in their contract and withhold the extra payment if the employee has not complied with the rules.

Under SSP rules, HMRC in its www.gov.uk page ‘Statutory Sick Pay: employee fitness to work’, states that “if an employer decides to stop payment of SSP, they should explain their decision to the employee”. The employee will be entitled to a written statement from the employer and can seek a formal decision on their entitlement from HMRC Statutory Disputes Payment team. You might like to refer to the ‘Stop Payment of SSP Section’ of that Guidance. There is an example letter to notify the employee that you will not be paying them.

There will be occasions where the employer has real reasons to believe that the person may not have been unfit for work. For example, they may have requested annual leave and that request has been rejected, so the individual then phones in sick. Clearly the employer would have to do as much investigation as they possibly could around the circumstances. For example, if the individual provides a doctors fit note, HMRC advises that that should be accepted as conclusive proof of incapacity for SSP purposes, even if there is very strong evidence to the contrary. The employer might need to get their own medical advice or to ask HMRC to arrange for the employee to be examined by the medical services team. Clearly that only works in the case of a health condition that is likely to be ongoing.

It might be possible to ask, for example, a GP who has provided a backdated sick note when their consultation with the individual was and providing evidence timing that the employee has been covering up them being perfectly well on the days in question. Evidence as to their activity from social media may also be relevant, eg. photographs of the employee swanning around Spain when the employee told the employer they were in bed and that they were so unwell that they couldn’t get up.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Health Conditions Mental Health Return to Work Sick Pay

Revised — Fit notes

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You may be aware that the categories of people who are able to sign a Fit Note for the purposes of Statutory Sick Pay and other Social Security claims has been broadened with effect from 1 July 2022, so that pharmacists, physiotherapists, registered nurses and occupational therapists are now all able to sign Statements of Fitness for Work.

The old rules that such paperwork needed to be ‘wet’ signed by the GP have also been removed so it is now possible for the electronic generation of this paperwork in order to improve the way in which medical professionals are able to issue such documents. The Fit Note is still required to be signed and include the name of the healthcare professional who authorised it to be legally valid so a version that is blank isn’t genuine.

The Department for Work and Pensions has issued guidance for healthcare professionals which is called “Getting the most out of your Fit Note”.

It is interesting reading, in particular the instructions to medics to focus on fitness for work in general rather than fitness to attend a particular occupation, which suggests that it ought to be harder for somebody to achieve a state where they are unable to work at all, compared to being unable to perform aspects of their job.

The case studies are interesting as well. Particularly the fifth one called “relationship issues at work”. It gives the example of a patient complaining that she doesn’t get on with her manager, is feeling very stressed and wants to be signed off work. The medic determines in the consultation that although the situation is upsetting for the individual, they do not have a mental health condition and that they are fit for work. The medic then explains to the individual that they can see that she is being affected by work but is not in a situation where she should be issued with a Fit Note. The patient reacts badly and tells the medic that their manager has been really horrible to her and that she is finding it difficult to cope. The medic is directed to say that they appreciate that that may well be the case but to explain that the situation is not making the patient ill. If they were ill then they would be issued with a Fit Note and the medic would be acting with their health interests in mind. Instead, the medic is encouraged to explain that this is not a medical problem but a management issue and that going off on the sick will not resolve the problem or help her to find another job if that is what she decides to do. If that conversation happened, I think all employers would be relieved.

The medic is then encouraged to discuss with the individual whether they can talk to somebody at work to help resolve their problems such as speaking to HR, a Trade Union representative or speaking to ACAS. In the case study, the patient decides to approach another colleague for advice, to check the internet and to look at ACAS materials on managing conflicts at work.

Using that example, the situations we come across in HR where this is some kind of conflict or dispute in work, should not by this analysis result in somebody being signed off from work. It will be really interesting to see to what extent the medics toughen up their approach, as we all know that the stereotype is that Drs will provide a Fit Note “on demand”.

In the question and answer section of the document, it’s interesting to see that there is a question relating to “what if my patient fears job loss, stigma or discrimination if I reveal a health condition (or its effect on their work functioning) on their Fit Note?”. The answer is as follows: “if you feel that revealing a particular diagnosis or a limitation would harm your patient’s wellbeing, compromise their position with their employer, you can enter a less precise diagnosis on the Fit Note”. We have all come across examples where a Fit Note has said something like “unwell” or “stress” rather than an actual medical condition – this is why it is always worth referring somebody to occupational health to get the full picture. It reminds us that this scenario may be behind what a medic has written and that all may not be what it seems from the face of the paperwork: further exploration is necessary.

It is interesting to note that medics are encouraged to only issue bereavement related Fit Notes if somebody is genuinely so distressed by what happened to them that they are unfit for work – where they are not actually medically unwell then they should be having compassionate leave with their employer not time off sick. Again it will be interesting to see how many medics follow this guidance.

There is also further guidance for employers and line managers: Fit note: guidance for employers and line managers. Amongst other things, this repeats the position that has been the case for some while now but which I find employers are often confused by, in relation to return to work before the end of a Fit Note. The employee can come back to work at any time, even if this is before their Fit Note expires and they do not need to go back to their healthcare professional first. If somebody is coming back and you believe it is too soon or harmful in some way, then you would need to refer to occupational health for an assessment and further guidance. Where a healthcare professional assesses somebody is fit for work, they will not be issued with a Fit Note (there are some very narrow occupations where certification has to be given).

Something else that strike me about this new guidance is the emphasis that people do not need to be 100% fit to return to work because they may well be returning to work with adjustments and need to do alternative duties. That would probably surprise employees.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Duty of Care Employment Law Health and Safety Health Conditions Mental Health Risk Assessment Stress

What to do when you’re worried about someone — Suicide awareness

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Friday, 10th September was Suicide Awareness Day. By coincidence I ended up having the same conversation twice with two different organisations. In both cases, the employer had an employee who was on long term sick and where a pattern of contact with the employer had been established but they felt that something had changed. The lack of contact they were now experiencing was out character from the employee. In one case the employee had shared that they were having negative thoughts and in the other the employer was just concerned.

In such a case where efforts to speak with the employee are not fruitful, if you have any concerns then I recommend you act on them rather than ignore them. Our intuition is there for a reason.

The first port of call might be the next of kin that the individual has left with you. You don’t need to get into discussing any details about the employee or their absence, their health or anything like that: you can just remind the next of kin that they have been appointed by the employee as the next of kin and that you are worried about the employee because there has been a change in behaviour — are they okay? This is likely to prompt the next of kin to say that they will check.

The second port of call might be the GP. If you have the employee’s GP details which you are likely to do from the fit notes that they will have been submitting, you could contact the practice explaining that you have concerns and this is likely to trigger the practice then checking up on the individual. The GP will not be able to discuss anything about the individual with you but they will note if you are saying there is out of character behaviour and the fact that you have bothered to take the time to call.

Clearly you might be barking up the wrong tree entirely but for the sake of a phone call or two, if you are in any doubt, it is better than regretting not having raised a concern if there is something to worry about.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Burnout Duty of Care Employment Law HR Mental Health Stress

Burnout and the risks for employers

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Last year the World Health Organisation recognised “burnout” for the first time in its classification of diseases. It defines “burnout” as “mental or physical exhaustion caused by excessive or prolonged stress and a syndrome resulting from chronic workplace stress that has not been successfully managed”. It highlights the three characteristics:

  1. Feeling of energy depletion or exhaustion.
  2. An increased mental distance from one’s job or feelings of negativity or cynicism relating to one’s job.
  3. Reduced professional efficacy.

For many people who were reading that definition they would be saying yes or would be ticking off the criterion, due to the pandemic, with the stresses and strains of the last year or so only adding to the problem.

Stress is normally a short lived thing or tied to a specific goal so is not harmful. If the stress feels never ending and comes with feelings of emptiness, apathy and hopelessness, it may be indicative of burnout.

A recent case involving a firm of solicitors that has been litigated through the Courts highlights the risk of employers not taking this issue seriously. In this particular case, the employee concerned was a high flyer – for a period of around 5 years he had been one of the most high billing or income generating fee earners at the law practice, being in a leadership position, in charge of one of the firm’s offices. Criticisms levelled at the employer included, failing to reduce his working hours or ensuring that he was taking his annual leave. He had been dedicating 15 hours a day to work and the employer faced criticism for not having picked up on that and done something about it.

It seems that when the condition began to manifest including the employee acting out a character and making an inappropriate joke which was then used as a disciplinary matter, the firm failed to put in place a structured plan for offering support. In particular, when the employee had 7 weeks’ ill-health, they didn’t take any steps to find out about the extent of his condition. If they had done so, they may have been more aware of his fragility and the problem that they were dealing with.

In particular, at the point at which he has tipped over into “burnout”, the firm had a duty to put their minds to how they could prevent the risk to his health that his job was causing. The problem is that the firm took the perhaps “usual” reaction of getting him to relinquish his management position. Indeed it was found that one witness had said that he should “drop back into midfield” and leave the captaincy to somebody else. The Judge in the case found that that was grossly insensitive. Of course the firm might have had genuine concerns over the impact on colleagues but there wasn’t really any meaningful communication around the issue or understanding of the workload issues or what was necessary.

These sorts of cases are going to be particularly relevant given all the evidence about people working from home, working greater hours, juggling all the other stresses that come with a pandemic and inadequacies in many cases of employers to be prepared to deal with these sorts of issues.

So what things can an employer be doing to prevent “burnout”?

  1. Actively encourage employees to take holiday, including those in senior leadership positions and create an environment where people are allowed to genuinely switch off, which will require senior leaders to lead by example in this regard.
  2. Reconfigure email so they send only during set hours.
  3. Encourage all managers to check in with the members of their team as regards workload. It is a culturally normally thing to happen for work to be juggled around between different people to alleviate the pressure points?
  4. Encourage employees to speak up if they are starting to feel overwhelmed, explaining that support will be available if they do, including the possibility of devoting extra resource to take on workload.
  5. Train managers to spot the signs when somebody is beginning to become overwhelmed and not cope and to not be afraid to intervene when they see that happening.
  6. Refer the employee to occupational health immediately for guidance on other measures that can be taken.
  7. Have an employee led position about what they think needs to happen – they know themselves best.
  8. At this stage, emphasise that any changes to job description or duties are temporary whilst you are supporting them to recover.
  9. Simple things can apply, such as permitting the employee to say no to new tasks.
  10. In any return to work/management plan, it will be useful to schedule regular breaks including identifying what activities the employee is going to be doing to help them reduce the feelings of burnout in terms of self-care and exercise etc.

If the medical condition the employee is suffering from becomes a long term thing then it could become a disability which is protected by the Equality Act, in which case the duty to make reasonable adjustments is going to apply. Where an employer has not tackled the issue early enough, if the employee goes through periods of absence and return to work with little changing, you can see how a pattern could be established that leads into disability territory.

In the particular case involved, the employer was potentially liable for the employees losses that resulted from his employment relationship coming to an end and not tackling the issue effectively.

Anna Denton-Jones
Refreshing Law

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Absence Anna Denton-Jones Burnout Disability Duty of Care Employment Law Health Conditions HR Mental Health Remote Working Return to Work Risk Assessment Video Working from Home

Video | Working from home and ill health

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘working from home and ill health’ and the potential impact on individuals and businesses.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Menopause Mental Health Protected Characteristics

Guest Blog | The Menopause — Why should organisations bother?

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Katie Day is a Director at RDP International Ltd

Policies and guidelines around mental health are in place.

Established and clear policies have been in existence for pregnant women and parental leave for many years.

Ways of recording reasons for absence and supporting staff (via Employee Assistance Programmes for example) are well used.

The menopause.

Ah.

Not so good there then!

I find this puzzling. Not every woman will experience pregnancy, yet every woman, if she lives long enough, will experience the menopause. As we make up around 52% of the population, and around 57% of that number are of key menopausal age (between 40 and 65). That’s a lot of women who will go through this life transition!

It is estimated that absence due to menopause (where woman are not supported at work) represents a cost to the UK economy of around £7.3 million per year1.  According to the Government Report on Menopause, women at menopausal life phase are the fastest growing workforce demographic, and according to the Faculty of Occupational Medicine nearly 8 out of 10 peri- and post-menopausal women are in work.

Women are lying. Around 75% of women say they do not feel confident to cite the menopause as the reason for their absence at work, so are reporting ‘other reasons’ for their absence. They feel really bad about doing this, which further exacerbates their feelings of vulnerability. Ensuring there is a supportive workplace culture is the responsibility of the organisation, not the responsibility of the women who work there.

One in four women consider leaving their job during this life phase.

Combine the above statistics with the legal requirements of employers to support and protect staff, this is a topic that cannot be ignored within the business community.

When asked, women in the UK report the following menopausal experiences as just some that have a negative impact for them at work, there are others2:

  • Irritability: 56%
  • Poor concentration: 51%
  • Tiredness: 51%
  • Poor memory: 50%

Women want to talk with other women going through this life phase, to have more information. They want management awareness of the topic, combined with information and advice from their employer. They want access to support via training sessions and networks.

Not all the responsibility lies with the employer of course. It is shared with the woman herself. We can all take ownership of our health and find out how we can best support ourselves, navigate this transition with the maximum ease and minimum stress and emerge stronger and even more resilient.

First and foremost we need to ‘normalise’ the conversation. What do I mean by this? Well, we all need to feel comfortable talking about ‘the M word’. If, as women, we are uncomfortable verbalising our experience(s), then it is pretty much guaranteed that people around us will also feel uncomfortable. The menopause is a natural part of life, and once we accept and embrace this life transition and see it for what it is – a temporary rite of passage, we are able to recognise that we can, to some degree, sail through rather than stumble through.

Honest and open conversations are the key. We all need to acknowledge the important and valuable contribution women of menopausal age make to the business world. By ‘all’ I mean women themselves and their employers. To lose all that experience and expertise is simply bad business and poor workplace practice.

With two employee tribunals (2012 and 2018),3 both of which went in favour of the claimant (menopausal woman), organisations ignore this issue at their peril. It is increasingly crucial that employers ensure they become, and remain, employers of choice – for everyone. ‘Everyone’ must not exclude women of menopausal age.

We work with some truly wonderful organisations who have the courage to tackle this issue head on, brave enough to make the changes necessary and savvy enough to ensure they retain some of their best talent. Do you work for, or run, one of these organisations? Or is there room for improvement?

Many of our clients are considering making our Supporting people during the menopause session mandatory for every manager they employ.

More and more men within our client organisations are putting themselves forward to be a champion and a ‘point of contact’ for women. They encourage other men to learn, change and support. They are the benchmarks all people need to follow.

Let us all embrace the strength and value of this time in a woman’s life, promote the wisdom, experience and expertise of women and collaborate to create an even more resilient and successful workplace.

Katie Day

Director

RDP International Ltd

katie@rdp-int.com

RDP International works with organisations on: leadership / communication / all matters ‘midlife’

www.rdp-int.com

Join the conversation:

LinkedIn:        Midlife Matters Group

Twitter:           @Midlife_Matters

Facebook:        Midlife Matters

  1. Kleinman NL, et al. (2013)

Direct and indirect costs of women diagnosed with menopause symptoms

Journal of Occupational and Environmental Medicine 2013 Apr;55(4): 465-70

  1. Griffiths A, et al. (2013)

Menopause and work: An electronic survey of employees’ attitudes in the UK

Maturitas 76 (2013): 155– 159

  1. Merchant v BT plc (ET/1401305/11, 27 February 2012)

Reported in below:

Okill A (2017)

Time to tackle the myths and taboos of the menopause in the workplace

HR News (October 2017): http://hrnews.co.uk/time-tackle-myths-taboos-menopause-workplace/ 

Katie Day highlights the need for workplace support for menopausal women, emphasising the importance of normalising discussions and providing resources.