Managing mental health at work can be complex, add a dollop of formal process on top and it can be challenging and feel daunting for employers, HR teams and managers.   

Here are the answers to some of the key questions our employment law team are regularly asked about managing mental health at work alongside a formal HR process.  

What if I suspect someone has a mental health condition?  

It goes without saying: check in to see how the employee is doing, and document it.  

The employee may tell you that they’re ‘fine’. If they do – continue the process as normal but remember that a lot can be gained from conversation, and it may be a good idea to check in more with this employee outside of the process. Conversations help to build trust. 

Always remember you’re not expected to be a medical expert.  If they do open up and disclose a mental health condition as well as taking on board what they say to you- refer them to Occupational Health (OH) to understand more from a medical perspective if they are able to participate in the process, and whether any reasonable adjustments can be made to assist the employee in any way either during the process or in general.  

Often in time-bound processes like a redundancy situation, there might not be time to wait for an OH referral report. If that’s the case, speak to your employee to try and understand more about the condition (some useful tips here), and explore whether you have any resources to hand which could help, for example an Employee Assistance Programme or Mental Health First Aiders. If you are really stuck – some high level research on the condition will help too.  

What if an employee discloses a mental health condition during a formal process? 

We see disclosure of a condition happen a lot at this stage. If it does – pause the process until you’ve made a referral to OH so that you can get medical advice on whether they are fit to continue. 

If OH say they aren’t fit to continue, you don’t have to delay. Continuing is not necessarily without risk, but there are options for employers here, such as: 

• Offering to make written submissions so that they don’t have to attend a meeting 
• Nominating a third-party representative to act on their behalf as long as they have capacity to do that 

But look, employees may refuse these options, so it may be that you have no other choice but to proceed, if OH tell you that they’re unlikely to be ready in the near future.  

If that’s the case and you do go ahead, document everything that you’ve attempted to do to try to get the employee back, because you want to proceed with them if you can. If that’s not possible, then make sure you document all the steps to show why you had no choice but to proceed without them. 

How to get a really good OH report 

We’ve mentioned OH a lot here. For mental health at work challenges, we would recommend not just getting your standard OH report. We’re specifically looking for whether they can attend a formal process meeting, so hone in on some detail as to whether they are fit to attend that meeting by asking questions like:  

• The exact medical and clinical nature of the employee’s condition at that time 
• Whether the condition could prevent your employee from listening, understanding, responding, or explaining material put to them during the formal process meeting 

And if you can, use an OH provider that has specific expertise in supporting mental health at work. 

If you are looking for further support on managing mental health for your organisation, don’t hesitate to drop us a line for an informal chat. We’ve also got lots more resources and advice on the mental health section of our HR resource hub that might be helpful to you and your HR team.