Employee signed off work with stress

Stress-related sickness absence has become increasingly prevalent in the workplace. Employers face a balancing act between supporting their employees’ wellbeing while minimising the risk of operational disruption and impact on other employees resulting from individuals being signed off work with stress.

The pandemic in particular has placed unprecedented pressures on workers, whether adapting to remote working, juggling caring responsibilities or dealing with other health concerns.

The following guide examines the rights and responsibilities of employees who are absent due to stress, and the rules employers should follow when managing stress-related absence.

Is an employer responsible for work-related stress?

Work-related stress is extremely common in the modern day workplace, often due to an overload of pressures and the demands placed on an individual on a day-to-day basis. It is both a psychological and physical health condition primarily caused by a person’s working environment and/or job role.

While there is no single definition for work-related stress, it is usually evidenced by symptoms such as apathy, fatigue, insomnia, over-sleeping, headaches, irritability, palpitations and even panic attacks, and can often lead to long-term health problems, including anxiety or depression.

There are also a wide range of factors that could be causing or contributing to an individual’s work-related stress including, but not limited to:

• Excessive workloads and/or constant deadlines
• Working long hours and/or undertaking too much responsibility
• Lack of career progression and/or job security
• Lack of support from work colleagues or management
• Difficult relationships with work colleagues or management
• Being subjected to bullying and/or harassment in the workplace
• Being discriminated against and/or victimised in the workplace
• Being subjected to a poor or unsafe working environment

Work-related stress is now widely recognised as a serious health and safety issue, and one that all employers must address if they are to comply with UK health and safety legislation. In other words, it is an employer’s duty to treat work-related stress like any other health hazard.

In particular, the employer is under a statutory obligation, so far as is reasonably practicable, to ensure the health, safety and welfare of all employees. In doing so, the employer must identify any health and safety risks which employees may be exposed at work, including risks to employee’s mental health, and take measures to control any identified workplace risks.

Additionally, the employer is under a duty to consider any mental impairment that amounts to a disability, making reasonable adjustments to ensure that employees are not substantially disadvantaged in carrying out their job.

The employer is also under a separate duty, where relevant, to prevent any bullying, harassment, discrimination or victimisation in the workplace, as well as to provide a safe place of work at all times.

What are an employee’s rights when signed off work with stress?

In the event that an employee is suffering from work-related stress, they will be entitled to take time off from work, and provide evidence from a medical practitioner of the reason for absence as they would for any other illness causing absence.

While an employer is entitled to expect that employees can cope with the normal pressures of work, once they have been made aware of any work-related stress, or where an employee is showing obvious signs of illness, the employer will be required to take reasonable steps to identify and resolve any work-related factors that are causing or contributing to the ill health.

In particular, employees should expect an employer to take practical steps to help the employee minimise stress, including reviewing the job description, reducing workload, offering support and training where necessary, and giving consideration to whether they should be sent home for a period of sick leave.

Employees should be encouraged to be open about any issues they are facing with work-related stress by raising the matter directly with their employer, typically with their line manager or HR personnel. In response, employers should have systems in place to support their employees, such making an occupational health referral for a workplace assessment.

Do employees need a sick note for stress-related absence?

If an employee is signed off work with stress for a period of more than seven consecutive days, including non-working days such as weekends, they will need to provide their employer with proof of work-related stress from a medical professional. This means obtaining a fit note from their GP.

If absent for fewer than seven days, they will be able to self-certify. In other words, they are to follow the organisation’s sickness absence procedure.

How long can employees be off work with stress?

The length of time that an employee can be signed off work with stress will vary significantly depending on a number of factors, including the nature of the job and the resources available to the employer, as well as any specific policies that the employer may have in place for dealing with long-term sickness.

The employee must have a fit note from a GP to cover any period of prolonged absence from work over seven consecutive days relating to the stress. Typically, a sick note will set out the nature of the condition for which they have been absent from work, any prognosis period and whether or not a further assessment of fitness for work will need to be made at the end of this period.

The sick note will also often indicate what changes may need to be made by the employer to support a return to work, such as a phased return to work, together with amended duties or altered hours.

Can you contact employees who are absent with stress?

By law, there is nothing to prevent an employer contacting employees during any period of absence for work-related stress. In many cases, given the nature of the condition, employees may expect the employer to maintain some form of contact, either by way of email or telephone, not least to prevent any feeling of isolation.

That said, there is a fine line between the employer being supportive and the employee feeling pressured into returning to work before they are ready and fit to do so. As such, any contact from the employer should only really be made in order to obtain an update as to the employee’s wellbeing and recovery, and, when they are ready, to facilitate the logistics of a return to work.

In particular, any contact when an employee is signed off work with stress should not be used to ask the employee to undertake any work-related tasks, and certainly not to deal with any potential disciplinary or grievance issues that may have arisen in consequence of work-related absence or otherwise.

Does an employee get sick pay for stress-related absence?

If an employee has been signed off work with stress for more than four consecutive days, in most cases they will be entitled to statutory sick pay (SSP) as a minimum, or any contractual sick pay entitlement.

To qualify for SSP the employee will need to be earning an average of least £118 per week. They must also have notified the employer of the illness within any specified timeframe under the terms of the contract, or otherwise within 7 days.

In the event that the employee is eligible for SSP, this will be paid at a rate of £94.25 per week for a period of up to 28 weeks.

Many employers will make provision for sick pay by way of an occupational scheme over and above the statutory minimum. However, there is no absolute entitlement to sick pay under the terms and conditions of employment, as this will be at the employer’s discretion

Can you dismiss an employee off work with stress?

If an employee has been signed off work with stress on a long-term basis, even with the support of their GP, the employer is not legally obliged to keep the job available on an open-ended basis for the employee.

As such, it is entirely possible that an employer could pursue disciplinary action against the employee for being incapable of carrying out their job role due to long-term sickness. In doing so, they must follow a fair process before making any decision to take punitive action such as a warning or dismissal.

As part of the procedure, the employer should investigate and take professional advice on the underlying medical reasons for the absence.

Needless to say, if any investigation reveals that the absence from work, on either a short-term or prolonged basis, is not stress-related, the employer might construe the absence as a form of gross misconduct for which the employee could be summarily dismissed without notice or pay in lieu of notice.

In contrast, where there is clear evidence that they are suffering from work-related stress, or even stress caused or contributed to by other factors, in circumstances where this amounts to a disability, the employer must not discriminate against the employee because of this.

In this context, the employer should only look at dismissal as a last resort, first exploring how they can assist with a return to work by making reasonable adjustments within the workplace. This could include, for example, allowing the employee to make a phased return to work, or undertaking amended duties and altered hours, such as part-time or flexi-work.

That said, where the employer has made all reasonable adjustments but the employee is still unable to do the job due to a disability, the employer may be able to lawfully and fairly dismiss the employee. They will be classed as having a disability if they have a mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities.

Legal risks of stress-related sickness absence

Employers will generally endeavour to keep a job open and support an employee’s return to work. However, where disputes arise as a result of stress-related absence, employers may be faced with:

• The employee lodging a formal grievance at work, both in relation to the root cause of the stress and alleged unreasonable refusal by the employer to allow the employee to take time off to recuperate or allegations of detrimental treatment at work by reason of any stress-related absence.
• Constructive dismissal claim, where the employee feels forced to resign in response to any failure on the part of the employer to remove or resolve the root cause of work-related stress or, as above, for any unreasonable refusal to agree to sick leave or by treating them unfairly for any stress-related absence.
• Negotiating a settlement agreement, where the employee and employer agree some form of mutual termination of the employment contract, typically in the form of a lump sum financial package, in return for which the employee would agree not to make any future tribunal claim.

Stress-related sickness absence FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.