Employed in sickness and in health?
I read recently that in the world of work, recruitment is like dating and retention is like a marriage. The employer courts the candidate of their dreams, promises the world, pops the question, gets married and then spends the entire marriage ignoring him or her. If I were to think about all the employment disputes I’ve advised on, a large number of employees will say they worked hard for their employer and turned down job opportunities over the years with prospective employers only to treated badly by their employer and cast aside. Many might say this sounds like the marriage that ended in divorce. We all know how the wedding vows go: “to have and to hold, from this day forward, for better, for worse, for richer, for poorer, and in sickness and in health”. If the employer/employee relationship is like marriage it’s the “in sickness and in health” part that’s the most interesting.
In the ordinary course of events, when deciding whether or not to ask someone out on a date, or whether to swipe left or right (admittedly I’ve been married a long time and have no idea how the kids are doing it these days!), you wouldn’t ask questions about their disability and health. You would simply take them as you find them and, if you found you weren’t compatible, for whatever reason, you just moved on to the next. However, when applying for a job this can differ.
Asking about health before a job offer?
Section 60 of the Equality Act 2010 makes it generally unlawful to ask questions about disability and health before you make a job offer (so-called pre-employment health questions). This is designed to remove the barriers that disabled people may experience in securing jobs. And you don’t just take a disabled candidate as you find him or her or simply move on if you don’t like what you discover (or ought to have discovered if you had only paid more attention to the employee). Section 60 does not affect an employer’s legal responsibility to make reasonable adjustments for disabled job applicants and that duty continues throughout the relationship.
So, now you’re married and an employee falls ill then what?
Last year, the Government announced proposals for new legislation aimed at “reducing ill-health related job loss”. For example, statistics from the Department of Work and Pensions reveal that 300,000 jobs are lost each year due to long term mental health problems. However, the Government wants to encourage employers to act early in the sickness absence period or when someone is at risk of going on sickness absence. It is, therefore, proposing to introduce, among other things, a new regime for employees who are unwell but not disabled whereby they can request workplace modifications.
Here’s the rub. Not all absences from work are for reasons easily understood and treated like a broken leg or food poisoning and it’s doubtful the Government was envisaging these types of sickness absences when proposing workplace modifications. It’s more likely to be the type of sickness absence that requires something more than just bed rest and antibiotics to get well, for example – stress. When stressors outside of work are causing the problem we’re not just taking “in sickness and in health” but “for better, for worse” too.
But to what extent are employers expected or required to help the employee with stress outside of work?
HSE guidance states that employers don’t have to do anything about it but it would be good if they did. It goes on to state, “it is difficult to control outside stressors, but [employers] need to take a holistic approach to employee well-being”. It’s no secret that many employers aren’t comfortable having difficult conversations such as ‘you’ve made a few mistakes at work recently, is everything okay at home?’ or “I’m sorry to hear that you’ve split up from your wife, is there anything we can do?’ So, if this does not sound at all like an attractive proposition, considered purely from a financial point of view it makes sense. Left feeling ignored or uncared for at work may become a case of work-related stress or worse and management intervention will help avoid claims of unfair dismissal, discrimination and negligence.
Of course, an employer can’t be expected to get to the root cause of problems outside of work (let alone address them) in the same way it can with events at work. But by remembering employees are employed “in sickness and in health”, at the very least, some consideration should be given to the impact personal factors may be having on the employer/employee relationship, and what can be done to help, before the thorny issue of divorce needs to be raised.
For information and advice on workplace sickness and employment law please speak to a member of the Blackadders Employment Team.
Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
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