Avoiding discrimination when managing mental ill-health absences

Charlie Wood outlines how HR can effectively support employees while they are off work

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As a starting point, having an effective sickness absence policy in place will assist employers in dealing with absences consistently and effectively. Employees will also be aware of the standards of attendance and reporting that the business expects from them, thereby helping to reduce legal risk from an employer’s perspective.

When an employee calls in sick, they should be dealt with sympathetically and appropriately questioned (such as the reason for their absence and likely date of return) so that sufficient information is obtained to make further enquiries or follow-up action. This has added importance in cases of mental ill-health as it is highly improbable that the employee will recover and return to work in the same manner as someone with a cold would, and therefore follow-up action will be inevitable.


Keeping in appropriate contact with the employee is important as it helps them to not feel isolated and uncared for. However, it may be prudent to depart from any contact provisions in a sickness policy and agree frequency of contact with the relevant employee. This will assist in minimising the risk of the company exacerbating the employee’s symptoms. Contact can range from emails to telephone calls and meetings or a mixture of them all.

Conducting return-to-work interviews can be effective in managing absence. An employer can identify the cause of the employee’s absence and establish if any follow-up action will be required. They can also be used to welcome employees back and update them on any news while they have been off.

Businesses should document any contact they have with the employee by way of file notes, letters summarising the steps taken to contact the employee and any action plans agreed, or minutes of any meetings with the employee.

Keeping up to date on medical conditions

Sickness absence policies normally require employees to attend a medical examination in cases of long-term absence. Employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. An examination has two benefits to organisations:

  • It can ascertain the medical condition of the employee and prognosis.
  • It may recommend reasonable adjustments, such as a phased return to work or an alternation of duties, that the employer can implement to assist in rehabilitating the employee back into work, which should always be the primary objective.

A meeting should then be held with the employee to report and consult on the medical report before taking any action on the basis of its recommendations.

No return to work?

In the first instance, businesses should consider implementing reasonable adjustments and, if that is not possible, they should consider whether there is another job available within the company that may be more suitable for the employee.

The unfortunate reality is that employers cannot indefinitely sustain long-term absences with no resolution in sight. Where all options have been exhausted, dismissal may need to be considered.

Unfair dismissal

From an unfair dismissal perspective, the right to which applies when an employee has two years’ continuous service, an employer can fairly dismiss an employee on the basis of absence. This is known as a ‘capability’ dismissal and is one of the five fair reasons for dismissal under section 98 of the Employment Rights Act 1996.

However, before any dismissal, a fair procedure needs to be undertaken. This will involve obtaining medical evidence and inviting the employee to formal meetings to discuss the likelihood of their return to work in light of the medical evidence. It is advisable for employers to seek legal advice at each step of this process.


The fact that mental ill-health may constitute a ‘disability’ for the purposes of the Equality Act 2010 should be at the forefront of a business’s mind when considering the relevant employee’s management.

The Equality Act, quite rightly, protects employees who suffer from a disability from being treated less favourably as a result of, or something that arises from, their disability. Employers are also obliged to make ‘reasonable adjustments’ for disabled employees.

Should an employer treat an employee less favourably because of their disability, or fail to make reasonable adjustments, an employee can make a complaint to an employment tribunal that they have been unlawfully discriminated against. The financial and reputational costs of discrimination claims are significant for businesses.

Unlike a claim for unfair dismissal, there is no requirement for an employee to have been continuously employed for a period of two years to present a claim for discrimination under the Equality Act – employees are protected from discrimination from as early as the recruitment stage.

Charlie Wood is a senior associate at SAS Daniels Solicitors