Employee wins stress case against NHS for discrimination and unfair dismissal

An Employment Appeal Tribunal has sided with a former NHS employee dismissed after becoming disabled with stress caused by his line manager.

Mr Foster worked for Leeds Teaching Hospital NHS Trust for many years, ending up as a senior security inspector in the Security Department.

In October 2006 he stopped working due to workplace stress and in February 2009 he was dismissed by the Trust on grounds of capability due to ill health under the Employment Rights Act.

Shortly after going on sick leave, Mr Foster raised a grievance alleging bullying and harassment by his line manager. He then went to see an Occupational Health doctor, who confirmed that his stress was the result of problems at work, and that his return to work would not be possible until those problems had been resolved. It was accepted by the Trust that during this whole period Mr Foster was disabled within the meaning of the Disability Discrimination Act (now the Equality Act).

After nearly a year of investigating – during which time Mr Foster was on sick leave - the Trust dismissed the grievance, refusing to consider the Occupational Health report as a part of the investigation. In fact, at no point were the reasons for Mr Foster’s absence from work considered by the Trust.

Mr Foster was then given a choice - either return to his old job, or another one in the Security Department, both of which put him under his old line manager. Redeployment elsewhere in the Trust was not an option.

Mr Foster refused. Even though the allegations against his line manager had been dismissed, that was not how he saw it. The doctor advised the Trust that he would not be able to return to work until he was redeployed outside the Security Department, but that he was ready and fit for such work elsewhere in the Trust’s 15,000 strong workforce. There was a standoff, as a result of which management recommended that Mr Foster be dismissed.

At first this recommendation was refused. The Trust put him on the redeployment register, but when a job came up he was by then too ill to take it. He had by this time been on sick leave for nearly two years.

Then, shortly after, Mr Foster’s line manager left the Trust, and a return to the Security Department became feasible. Mr Foster requested a meeting with the Trust’s management to discuss some issues relating to his health, but this was refused. He was told he would have to consent to a whole new grievance procedure if he wanted to discuss his return to work.

Mr Foster then went back to his doctor, who now advised that his prospect of returning to any work at the Trust was not foreseeable. Mr Foster had lost all faith in the Trust. As a result the Trust dismissed him.

The Tribunal found that the Trust had a duty to make reasonable adjustments to prevent Mr Foster from being at a substantial disadvantage under the Equality Act. It said:

‘people who were not disabled as a result of stress were not under the disadvantage of having to work in a department which caused them stress.’

It found that an adjustment was reasonable if it involved a prospect that Mr Foster could have been redeployed. The fact the Trust employed such a large workforce, and that later – when it was too late – a job had come up, showed there was a prospect of redeployment.

The Tribunal also found that Mr Foster had been unfairly dismissed because it had not considered any alternative arrangements for him. No reasonable employer would do that. When it did eventually consider redeployment and return to work, it was too little and too late.

The fatal flaw of the Trust was a lack of flexibility in addressing Mr Foster's concerns. When he appealed to the Trust against his dismissal, it was found there was evidence he had been harassed. However, even without this evidence, the Trust should have paid heed to the Occupational Health report and considered ways to help Mr Foster return to work. Had Mr Foster been the victim of a physical injury, perhaps the Trust might have behaved differently?

For further reading, try this resource for groundbreaking cases on mental health at work.

Two in five Europeans has a psychological condition

The results of an extraordinary survey of thirty year’s worth of mental health data carried out over 27 countries has revealed that nearly two in five Europeans has a mental or other disorder of the brain.

No doubt eyebrows will be raised and articles penned about the ‘medicalisation of normality’ – and in fact a prime example can be read in this week’s Guardian.

‘Big Pharma feeding its appetite for profits and ours for drugs, has gained an ever greater hold over our mental and emotional lives, medicalising normality.’

The argument runs that the medical establishment is continuously inventing disorders to justify its existence.

There might be some truth to that. Glaxo Smith Kline, makers of Seroxat, Paxil and other antidepressants, continues to peddle the false information that depression is caused by an ‘imbalance in brain chemicals’ which miraculously can be ‘cured’ by taking their drugs.

In fact antidepressants were discovered by accident and no one really knows how they – or depression – work.

On the other hand it is also patently absurd to state that ‘doctors could recommend group running for depression, proved to have far better effects than [antidepressants].’ Really? You’d need to do a lot of running.

Looking at the list of ‘disorders’ in the EU report, they all seem quite familiar to me – alcoholism, insomnia, anxiety, OCD, dementia and Post Traumatic Stress Disorder. I’m sure most of us know someone, maybe even ourselves, with one of these.

Take insomnia for example. This was found to be the second most common disorder in the EU, suffered by 7% of the EU population, or 29.1 million people.

So what is insomnia? Sure, people have difficulty sleeping – that doesn’t mean there’s something ‘wrong’ with them, does it?

Well, look at this study commissioned by the Mental Health Foundation. Insomnia is defined as ‘sleep disturbance for at least three nights a week to the extent that it causes a degree of day-time distress.’

The Mental Health Foundation thinks it is a ‘major public health concern’ causing 55% of insomniacs relationship difficulties (compared to 13% for non-insomniacs), 83% low mood (with the inherent risk of depression) and 94% low energy, 78% poor concentration and 68% decreased ability to get things done (with all the implications for work).

While they might not use the rather clinical term ‘disorder’ I think most insomniacs would admit that, in a very negative way, their sleep is not ‘normal.’

The same is true for depression. Sure low moods are part of life – you can’t be ‘up’ all the time. But being ‘down’ all the time, for weeks on end with no relief, is that ‘normal?’

The lead author of this ‘major milestone’ of a report predicted the negative response his findings would get:

'Lay persons, the public, and even many clinicians and researchers might be surprised and sceptical both about our 38% estimate and the large number of disorders included. This might be due to limited knowledge, negative attitudes, and potentially to misconceptions about the nature of mental disorders.’

Why can’t our brains go wrong?  I mean they are by far the most complex things we own.
The report describes mental health as the most important health issue of the 21st century, with depression by far and away the leading cause of disability and early death.

In order to tackle it public information is incredibly important. But people are not going to respond to language like ‘disorder.’ Everyone wants to be part of the ‘normal’ club, even when membership is falling.

A recent report from the Centre for Disease Control in the US has predicted that nearly one in two Americans will experience a mental health problem in their lifetime, while

‘Nearly 8.4 million Americans had suicidal thoughts in the past year and 2.2 million made plans to kill themselves. One million persons attempted suicide.’

This is not a case of ‘medicalising normality.’ By saying it is we are encouraging people to make a dangerous choice between being normal and getting well.

CBI survey: mental health is a priority at work

I’ve just stumbled across the Confederation of British Industry’s 2011 absence report.

The CBI report is interesting reading because of its scope – the respondents employ over one million people in total – and because it represents how employers see the workplace.

I was particularly interested in the results for non-manual labour. Employers were asked to list their top causes of short-term absence:

• Minor illnesses (colds etc): 98% of employers
• Migraine/chronic headaches: 47%
• Non-work related anxiety/stress/depression: 46%

An interesting point about the report is that – unlike other causes that I could see - anxiety, stress and depression were divided into work and non-work causes, with work-related mental ill health listed at 24%.

I would be curious to know how employers make this distinction. For  a variety of reasons – not least its perception as a weakness – employees are likely to underreport workplace stress. The results of the Labout Force Survey suggest that mental ill health accounts for about 35% of illnesses caused or made worse by work, a distinction which shows that work and home can aggravate as well as cause people to be made unwell.

In terms of longer-term absence (20 working days or 28 calendar days or more per year) the biggest cause of absence were:

• Non-work related anxiety/stress/depression (61%)
• Cancer (41%)
• Musculoskeletal disorders (31%)
• Work-related anxiety/stress/depression (29%). 

What to make of the results?

The employer view accords with the DWP survey of employees that ‘Depression, bad nerves or anxiety’ were the main causes of employee ill health. It also compares closely with other measures of health at work such as the annual survey of GPs, which puts mental health at 57% of all absences. Outside of common colds, mental ill health is the leading cause of absence at work.

The high rate of long term absence is also in line with the findings of the Centre for Mental Health that someone with depression or anxiety is likely to be absent on average for 19 days a year, more than double the national average. Stress is a trigger for depression and anxiety, and prevention and early intervention are therefore key strategies to keep employees in work.

The report found that 89% of employers operated some kind of stress management activity:

• Counselling: 89%
• Occupational health: 81%
• Flexible working: 69%
• Regular risk assessments: 52%
• Job redesign: 44%
• HSE management standards for stress: 36%
• Training: 35%

While this might look encouraging, the fact that only 36% of employers use the Management Standards is worrying.

A 2009 study into the Management Standards found they were ‘associated with increased job satisfaction, decreased job-related anxiety and depression and lower witnessed errors/nears misses.’ They are in fact the primary tool to prevent work-related mental ill health, while services such as counselling are more akin to an ambulance, necessary but not something you want to rely on.

The role of managers is perhaps accepted by employers, which identified day-to-day management as key planned areas for future activity. As the CBI report concludes, ‘wellbeing policies do not need to be expensive. But it is important for employers to consider what approaches are likely to yield the greatest benefits for their particular workforces.’

Rather than investing willy-nilly in wellbeing programmes, employers would be best served by carrying out a Management Standards survey first. In addition to identifying where to focus interventions, it would also provide benchmark data to monitor improvements.

The big D: overcoming fear and ignorance in work

The mental health charity SANE has launched a major new depression awareness campaign. It has commissioned life-size black dogs to place in cities throughout the UK to raise awareness of the 'invisible' condition.

Depression and anxiety were the most commonly reported illnesses in a new Department of Health and Work report on employees at work. They account for over half of all work-related absences signed off by GPs.

So it made me wonder why there is such a lack of information or help about depression at work. The Shaw Trust's follow up report, 'Mental health: Still the Last Workplace Taboo?' perhaps indicates the problem is a mix of fear and ignorance.

In the 2010 report - which sampled 300 small companies (1-50 employees) and 200 medium/large companies (over 50 employees) - these two keys statistics stand out:

• Only 22% of employers thought someone at work currently had a mental health problem.
• 40% of employers thought that someone with an illness like depression would be a 'significant risk' to their business.

Taking the rate of common mental health problems at about one in six of the working population, any organisation which has more than ten employees is practically guaranteed to have someone with or at risk of developing symptoms of depression and/or anxiety.

The fact this sounds like scare-mongering really shows the reality gap. According to the World Health Organisation, depression is the largest cause of disability in the world.

Fear, ignorance and depression are hopelessly intertwined. One of the reasons managers think their workforce is so mentally sound is because they are filtering out any feedback which says the opposite. If you were thought of as a significant risk, would you go to your line manger with a mental health problem?

Organisations need to take off their rose-tinted glasses and look at the objective evidence. Then - through confidential means - they should look at how their own workplace stacks up.

At the same time, pubic bodies such as the Health and Safety Executive and the Department of Health should be blitzing offices with a simple message. To get the ball rolling I propose a poster such as:

'Have you felt little or no joy or pleasure in life, or had a low mood you couldn't budge for at least two weeks?

Depression is one of the most common illnesses in the UK. It affects millions of Britons. There are many ways to help you feel better. 

You can quickly check if you may have symptoms of depression at www.nhs.uk/Tools/Pages/depression.aspx. 

Your GP can also help.'

Everyone - front-line staff, managers, CEOs - all are at risk of depression. By far the best tactic is prevention, and that means making people aware at the earliest point what to look out for and how to avoid it getting worse.

Such a campaign might also help to reduce stigma and help colleagues to look after each other.