Matthew Whelan and Esther Smith advise on the role of OH in a ‘company caused’ stress case.

Occupational health and stress

Employee off work for six months with stress (consequence of work/bad management), attending MIND and Addiction Counselling treatment. How could Occ Health (with RGNs) offer help? They are not trained in mental health issues. Also: there has been no contact from Occ Health in six months.

Employee feels unable to return to that company to work, feeling that the company caused the problems in the first place. What would be their best option?

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham

I assume from the information you have given that you are posing this question from the employee’s perspective, rather than the employer’s perspective. 

It may be that occupational health assistance would be helpful to the employee. For example, if the occupational health professional has training in mental health issues (which some occupational health professionals may) then this may be of assistance. From the employee’s perspective I think it is better, if this support is offered, to take it unless there are compelling reasons not to.

I note that you mention there has been no contact from occupational health in six months. It may be that the employer should have arranged this earlier, but this depends on the reasons why this has not been offered.

There are numerous sources of law which give an employee potential recourse in circumstances where they suffer from stress, including stress which has been caused by work circumstances. It is important therefore to take advice. These claims could include personal injury, disability discrimination and potentially constructive unfair dismissal (including whistleblowing). 

What the employee should do next very much depends on the facts and detail including how strongly they feel they cannot return to work and the reasons for this. The employee needs to consider carefully whether he/she should resign but should not do this before taking legal advice as there is a clear risk in this course of action. It may be that the employee needs to raise their concerns with their employer, for example by raising a grievance, to see if the employer is willing to take steps to facilitate their return to work.

In short, it is clear that the employee needs to take detailed legal advice to decide what to do next and what rights they have and that they should do this as soon as possible, particularly if they are thinking of resigning as delay can prejudice a claim.
 

Matthew Whelan can be contacted at [email protected]. For further information, please visit www.speechlys.com.

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Esther Smith, partner, Thomas Eggar

I am not clear whether you are seeking advice on behalf of the employee or the employer here. Occupational health advisors are there to provide opinions and guidance with an emphasis on the occupation that the employee concerned is employed to do. They do tend to be, although are not exclusively, general trained nurses, although some of the larger providers do have specialists within their teams. 

Very often the occupational health advisors will be interpreting information obtained from the employee’s practitioner (who is usually a consultant by the stage that occupational health get involved) whilst being aware of the nature of the employer’s business and the nature of the employee’s role within that business.

Their views are there to assist and guide the employer, who has no medical knowledge or expertise, and therefore very often in no position to make decisions in isolation. They are also a conduit between the employee’s health practitioner and the workplace environment. They are a very useful, and valuable, resource.

In terms of an employee who does not feel able to return to work due to their perception that the employer is the cause of their health problems, they do of course have the ability to resign and leave their position as any other employee does. If they do believe that there is a causal link between their health condition and their employment, they should seek specific advice from a personal injury specialist to see if there is a claim there to be pursued. Alternatively, before getting to this stage, if they are inclined to at least try to return to work, they should raise their concerns with their employer through a grievance process, as it is of course possible that their concerns could be addressed and a return to work may be achieved.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.