All of us experience the ebb and flow of mental health throughout our lives but with almost 15% of working-age adults reporting a long-term mental health condition (up more than 5% in the past decade) and rising stress levels, especially among younger workers, this year’s Mental Health Awareness Week and its focus on ‘action’ brings into sharp focus the challenge faced by employers. Whilst by no means a new phenomenon, it is a growing one.
So, how do employers balance the need to provide support to employees with meeting business needs and managing legal risk?
Why it matters
There are many benefits to actively supporting employees’ struggles with mental health. Some see it as a moral imperative; supporting their fellow man. Others recognise the investment it represents and the promise of practical returns; improved staff motivation, engagement and loyalty[1] as well as improved productivity, including through reduced absenteeism and presenteeism[2].
The legal position
The Health and Safety at Work etc Act 1974 imposes a duty on employers to provide a safe place of work; employers being required to take reasonable care of the health and safety of their employees. Breaching these legal obligations carries serious legal, commercial and reputational risks.
Are mental health challenges a disability?
The short answer: it depends.
Where a mental (or physical) health impairment has a substantial and long-term adverse effect on someone’s ability to carry out day-to-day activities it is a disability and additional legal protections arise under the Equality Act 2010.
Meeting the definition of disability is not a high bar. “Substantial” just means the adverse effect is more than minor or trivial; “long-term”, that the adverse effect has lasted or is likely to last for 12 months, or for the rest of the person’s life.
Where the threshold for disability is met, steps need to be taken to avoid discrimination in the workplace. Employers have a duty to make reasonable adjustments for disabled people; a duty that extends to disabled job applicants as well as employees.
When does the duty arise?
Reasonable adjustments must be made where:
- a provision, criterion or practice applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Here, the employer must take such steps as are reasonable to avoid the disadvantage.
- a physical feature of the employer’s premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Again, the employer must take such steps as are reasonable to avoid the disadvantage.
- a disabled person would, unless provided with an auxiliary aid by the employer, be put at a substantial disadvantage in comparison with those who are not disabled. Here, the employer must take such steps as are reasonable to provide the auxiliary aid.
What do reasonable adjustments look like?
The question of what is “reasonable” is multi-faceted and fact sensitive and specialist advice should be obtained.
Para 6.33 of the Equality and Human Rights Commission’s Code of Practice[3] provides examples of reasonable adjustments, including:
- Allocating some of a disabled person’s duties to another worker.
- Altering hours of working or training.
- Adjusting redundancy selection criteria.
- Providing supervision or other support.
- Allowing a disabled person to take a period of disability leave; or
- Modifying disciplinary or grievance procedures.
Managing mental health-related sickness absence
Worryingly, CIPD data from September 2025 shows mental ill health, such as depression or anxiety, as the most common cause of long-term absence and the second most common cause for short-term absence. Managing sickness absence is therefore an increasing challenge for employers regardless of size or sector, but there are things employers can do to support mental wellbeing.
Fit Notes
The first seven days of sickness absence can be self-certified following which a Fit Note must be provided.
Employers often ask whether statutory sick pay (“SSP”) can be withheld where an employee fails to provide a Fit Note, but the SSP regulations do not permit this. SSP can only be withheld where an employer reasonably doubts the genuineness of the absence or where the employee fails to notify of their sickness absence. For the latter, SSP can only be withheld for the period between the expiry of the employer’s deadline for reporting sickness absence and when notification is made.
Maintaining communication
Employers can maintain a reasonable level of communication with an absent employee. This is especially important in cases of long-term absence.
Excessive or poorly managed communication can lead to absent employees feeling harassed or as if the genuineness of their absence is in doubt. This can be very damaging to employee relations so absent employees should have a say on what communication with them will look like.
Early signposting to available support services, including through any Employee Assistance Programme, is advisable.
Occupational health
Where absence is long-term (or intermittent but frequent) occupational health (“OH”) can help identify when an employee is likely to be able to return to work and what adjustments might be needed to support that return. There is no ‘one size fits all’ solution so engaging OH can be an important part of a fair process.
Returning to work – phased returns and return-to-work meetings
Phased returns and return-to-work meetings are important tools for an employer to support an employee back to work.
A phased return is a temporary arrangement where an employee gradually increases their working time, duties and/or intensity of work rather than resuming their full role immediately. They will often include:
- Reduced days / hours of work.
- Lighter tasks or reduced workload (avoiding pressure points can be vital for someone returning to work following a mental health absence).
- Later starts or earlier finishes (helpful where sleep is affected); and/or
- Reduced performance expectations.
A phased return should have an anticipated end date and clear review points built in to identify early on where further adjustment is needed. For disabled employees, a phased return can form part of reasonable adjustments.
A return-to-work meeting should be conducted by a suitably trained manager on an employee’s first day back at work, or as soon as reasonably practicable thereafter. It should be a supportive conversation (not an interrogation) focussed on:
- Welcoming the employee back.
- Providing an update on any changes in their absence.
- Making sure they are fit to return.
- Identifying any adjustments needed (including as part of any recommended phased return); and
- Identifying any opportunities to prevent future absence (including spotting any patterns of absence).
Preventing work-related stress – culture and risk assessment
Sickness absence cannot be avoided entirely, however, Acas guidance on reducing sickness absence outlines that having the right workplace culture means employees are more likely to remain in work, even if there is a problem. A substantial body of evidence shows the opposite to be true: one study identifying a 76% increased risk of sickness absence for a mental disorder where employees are exposed to psychosocial stressors at work[4]
Good workplace culture means employees feel comfortable raising problems, trust that issues will be taken seriously and know they will receive the support they need; something employers should be actively working to achieve.
Identifying, evaluating and controlling work-related stress risks is important to help avoid future absences, especially in cases involving poor mental health. A stress risk assessment is a helpful tool that allows an employer to identify stressors in the workplace that are likely to impact on mental health and to take action to protect the employee from those risks.
We all experience stress differently so, wherever possible, stress risk assessments should be completed in collaboration with the employee. That assessment document should then be shared with the relevant people (e.g., line managers) to ensure its implementation. Just like with a phased return, stress risk assessments should be kept under review and adjusted where needed.
What to do when mental ill-health affects performance
There are myriad ways for poor mental health to negatively affect performance – increased absence, challenging attitudes, reduced punctuality, missed deadlines etc.
Whatever the effect on performance, employers need to show open-minded curiosity and engage in meaningful discussion with an employee to establish the true medical position and what support is needed. They then need to make genuine efforts to provide that support. Where an employee is disabled, these steps are even more important to ensure fairness and avoid discrimination.
Most employers are not medical qualified so establishing the true medical position will often require input from an employee’s GP or OH. However, employers should not blindly accept the findings in a medical report, these should be discussed with the employee to ensure they are in agreement.
There may be times where no suitable adjustments can be identified or where, despite making adjustments, performance issues continue. In these cases, employers need to explore whether the employee could be redeployed into an alternative role better suited to their circumstances or, failing that, where dismissal on the ground of capability is necessary.
Capability is a potentially fair reason for dismissal but requires a fair process to avoid an unfair dismissal. Discrimination risks also need to be carefully considered, and specialist advice should be obtained.
The following factors are likely to be relevant when considering the reasonableness of a decision to dismiss:
- The nature of the employee’s illness.
- The prospects of the employee returning to work and the likelihood of the recurrence of the illness.
- The need for the employer to have someone doing the work.
- The effect of the absences on the rest of the workforce.
- The extent to which the employee was made aware of the position.
- The employee’s length of service.
Given the risk of unfair dismissal and discrimination, employers need to be documenting their interactions with an employee whose performance is affected by mental ill-health. Notes should be taken contemporaneously or immediately after meetings / discussions. Alternatively, having someone join meetings specifically to take notes can be extremely helpful, not least because it allows the other person to focus on the dialogue with the employee. Another option is to record meetings, but this should not be done without the employee’s consent.
When to seek legal support
Supporting employees experiencing mental health challenges can be one of the most challenging situations faced by employers. These can be high risk situations – legally, commercially and reputationally – especially where an employee is disabled. Employers are therefore well advised to seek specialist legal advice when managing sickness absence, considering reasonable adjustments and/or considering dismissal on the ground of capability.
[1] FSB | Why mental health support is a business investment – not a perk
[2] Organizational Best Practices Supporting Mental Health in the Workplace – PMC
[3] employment-code-of-practice.docx
[4] Psychosocial Stressors at Work and the Risk of Sickness Absence Due to a Diagnosed Mental Disorder: A Systematic Review and Meta-analysis | Psychiatry and Behavioral Health | JAMA Psychiatry | JAMA Network