According to the 2020 CIPD/Simply Health annual Health and Well-being at Work survey, mental ill-health remains the most common cause of long-term absence. The survey also highlighted that not enough line managers are being equipped with the necessary knowledge and skills to support good mental health in the workplace. The case of Aylott v BPP University Limited is one example of where better informed line managers could have been of real assistance.
Mrs Aylett suffered from Autistic Spectrum Disorder, anxiety and depression. She had a difficult home life combined with working long hours in a stressful job. Despite clear indications from Mrs Aylott that she was not coping with work pressure she was subjected to some ill thought out actions by her employer. These ranged from her being described as "mad as a box of frogs" to being told she should not refuse work or indicate she wasn't managing, and that she should be able to prioritise her work at her age. Significantly after requesting a referral to Occupational Health (OH) and attending a sickness review meeting where she disclosed she had suicidal thoughts she was informed that discretion to extend contractual sick pay would not be used (a decision taken on the basis she was off sick with "stress"), that her feelings of stress were "her perception". She was, instead, offered a settlement agreement and re-engagement as a contractor. He request for OH support was not dealt with.
She subsequently resigned and claimed constructive dismissal and a number of disability discrimination claims. Although claims for harassment, failure to make reasonable adjustments and indirect disability discrimination failed, her constructive dismissal claim and two claims for discrimination arising from disability were successful. The constructive dismissal claim was one based on a fundamental breach of trust and confidence by the employer. The cumulative effect of nine separate incidents including failures to address her workload or heed indications she was not coping, not extending the sick pay and a superficial grievance investigation all contributed to the fundamental breach, as did the attempt to steer the claimant towards termination of employment under a settlement agreement rather than referring her to occupational health. It became clear in evidence that the decision to push Mrs Aylott towards a settlement agreement was taken by the HR business partner dealing with the matter, however he did not give evidence to the tribunal.
Discrimination arising from disability occurs where a disabled person is treated unfavourably because of something arising in consequence of their disability, and the treatment is not justified. The Employment Judge found that the adjustments Mrs Aylott needed to accommodate her mental health (a referral to OH) and the stigma of mental health arose from her disability, and that the failure to make that referral in a timely manner was unfavourable treatment. The tribunal found that the failure to obtain OH advice was because the HR business partner did not want to make adjustments to Mrs Aylott's role, choosing instead to focus on termination of employment.
The Employment Judge also concluded that Mrs Aylott's absence was something arising from her disability. They found that the HR business partner's focus on termination of employment under the settlement agreement was because of Mrs Aylott's sickness absence, and the failure to offer alternatives (in this case an OH referral) was unfavourable treatment.
This case has been appealed to the EAT. It is also of note that the HR business partner was not available to give evidence and that the employer failed to make any attempt to argue that the treatment of Mrs Aylott was justified. However, even taking that into account what is clear is that had those involved on the part of the respondent been better able to properly deal with Mrs Aylott's situation then the matter could have had a completely different outcome.
Properly managing mental health and well-being in the workplace has not only been shown to improve morale, retention of staff and productivity, it is also now something that employers are being judged upon by customers, clients and potential employees. Line managers and, as in this case, HR professionals need to ensure that they are able to identify employees who may be struggling and understand and be able to fulfil their legal obligations towards those employees. Appropriate training is an essential part of making that happen.