Staying on the right side of the law when supporting staff through stress and burnout
CREDIT: This is an edited version of an article that originally appeared on Work Nest
A high number (67%) of school leaders say they have seen an increase in mental health conditions amongst their staff in the past 12 months. What’s more, 68% of leaders have themselves felt stressed, overwhelmed or unable to cope.
Here are some practical HR and employment law tips for tackling this recurrent issue so that you can continue to support staff, shrink absence levels, and stay on the right side of the law.
Be mindful of presenteeism
We generally think people with mental health issues will be signed off sick – but this isn’t always the case. Many people suffering with stress, anxiety or depression keep going, and often put in longer hours to try and get ahead.
This can, unfortunately, lead to burnout. In the current climate, certain sectors have found balancing workload, and allowing individuals to take time off, particularly difficult; this may be true for schools, particularly as they tend to employ highly conscientious individuals.
Keep in mind that mental ill health does not automatically equate to poor performance – in fact, many people with mental health problems perform highly at a range of levels in organisations, some with, and others without, support or adjustments. In other words, stress looks different for different people, so keep an eye on any individuals that are working more hours than normal, even if they appear to be coping.
Raise awareness
Raising awareness is key, and this should be done across the organisation to create a shared understanding of what mental health is, the potential causes and symptoms, and how the organisation will support people who present with mental health issues. Promoting healthy working practices will go a long way towards making your staff feel supported. You could consider:
Appointing a mental health first aider (MHFA)/champion
How many MHFAs do you have? Are they just in the HR community or across the wider school/trust? Do staff know they exist and what their role is? If not, you may be missing a vital first point of contact for people with mental health issues.
Introducing an employee assistance programme (EAP)
Do you currently offer this facility to your staff? Are they aware of it? Do they use it? Individuals may be apprehensive about using support programmes linked to their employer, as they are not convinced they are confidential, and may be afraid it will show weakness, so staff should be encouraged to access such support.
Occupational health (OH)
These offer specialist support from qualified medical practitioners. They can offer advice on medical concerns, including prognosis and any reasonable adjustments to be considered.
Counselling services
This can be offered via EAP or OH services or as a standalone. Be prepared for more people declaring mental health issues once you start raising the profile of mental health, as issues may well have been hidden previously, or gone unrecognised.
Train your line managers
Managers should be able to recognise the common signs of mental ill health. They should know what to do when someone is signed off with a mental health condition, the steps to take in order to support the staff member, and what resources are available to them and the staff member, including sign-posting staff to the services mentioned above if expert help is required. They also need to understand their role as a manager. This includes:
Being approachable, available and encouraging staff members to talk to them if they are having problems.
Tailoring their management style to suit the needs of the staff member.
Monitoring workloads, setting reasonable targets, and communicating effectively.
Holding regular, one-to-one, meetings to check on progress and identify any areas of concern – particularly important in respect of anyone working remotely.
Not all line managers are good at listening, understanding and empathising. Use someone else, if necessary, though you should endeavour to help managers develop these skills if they don’t come naturally to them
You can support managers by:
Providing mental health awareness training.
Creating a library of information that they can call on (this will reduce inconsistencies, time and energy).
Having a policy in place that managers and staff can access.
Implementing return to work questionnaires specifically for dealing with individuals who have been signed off with mental health issues.
Introducing a wellbeing policy to demonstrate the organisation’s commitment to health and wellbeing, and keeping this under review. Interestingly, our survey found that two thirds of schools (66%) don’t have a wellbeing policy – we can provide a template for you.
Be aware of legal pitfalls
Someone who is suffering from stress, or a short-term mental health condition, won’t necessarily be classed as disabled. However, if the condition meets the definition of a disability – in that it is substantial, long-term and impacts their ability to carry out normal, day-to-day, activities – you must bear in mind the consequences of them being protected by the Equality Act 2010.
If an employee’s mental health condition meets the definition of being disabled, you will need to ensure that you comply with your legal obligations, which are to:
Obtain medical advice on what reasonable adjustments are required to support them.
Make those adjustments in consultation with the employee.
Not discriminate against them because of their disability, or for a reason arising out of that disability.
The third point is particularly important when it comes to managing poor performance; this has, in the past, caught out employers in relation to conduct. Famously, in 2018, a senior teacher who was dismissed for showing a horror film to his underage class won a claim for disability discrimination, as the tribunal found he was suffering from stress provoked by his unfavourable treatment at the school. He was awarded £646,000 in compensation.
Given the potential legal repercussions, it’s always safest to seek advice.
Develop a clear and pragmatic absence policy and procedure
Is your absence policy fit for purpose? Within education, these can be unnecessarily complicated and unwieldy. We can assist you with a more pragmatic absence policy if required. Key components should include:
Keeping data so that you can monitor sickness absence levels, distinguish between frequent short-term absence (which may indicate stress) and long-term absence, and spot patterns. You may establish trigger points, but you will need to adjust these for disabled employees, and you should record any pregnancy-related sickness absence separately from other sick leave so that it is not used as a trigger for disciplinary action, dismissal or redundancy.
Arranging for a medical or OH report if someone goes off on long-term sick, or you notice a pattern of repeat, short-term, absence, then using this to identify any reasonable adjustments. If the employee is disabled, monitor the situation for longer than you would a non-disabled employee.
Ensuring that, if the employee is likely to meet the definition of being disabled, any action taken is proportionate, and for a legitimate aim, such as preventing undue disruption to children’s education.
After giving all appropriate and reasonable support, you could look to dismiss the employee on the grounds of medical capability if they are unable to give regular and sustained attendance and performance at school.
When those under investigation cite stress, obtain evidence
Lastly, it is common for employees who are under some kind of investigation for performance, capability or disciplinary – who have never reported sick before – to suddenly supply a medical fit note saying they are not fit to attend work due to ‘stress’.
Sometimes these are genuine; at other times they are delaying tactics. If this happens, it is important that you adjourn the procedure to refer the employee to OH for an assessment to determine whether they are fit to take part in the relevant procedure.
The medical guidance is normally that the employee should, where possible, continue with the process as having this hanging over them is, in itself, stressful. If the employee still refuses to participate, you can cross-reference to the OH report to show they are regarded as fit enough to attend (if this is the case).
If they keep delaying or avoiding the meetings you may end up having to deal with them in their absence. If that situation applies, do take legal advice.
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