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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44404
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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After experiencing severe anxiety related symptoms following

Customer Question

After experiencing severe anxiety related symptoms following major hip surgery at the start of June, I was referred to a psychiatrist by my GP who subsequently diagnosed me as suffering from a major depressive episode combined with generalised anxiety disorder, caused by, in his opinion, overload at work and physical incapacity.

I am head of a department, and my team and I have been overworked for months. Repeated requests for more resource have been repeatedly pushed back, despite being very much in demand. As a result, I have been taking on the roles of both manager and individual contributor, which has been very stressful. I have been raising this with my manager repeatedly yet nothing meaningful had been done. I was prescribed anti depressants and a course of cognitive behaviour therapy.

Following my return to work 4 weeks ago, I was thrown straight back into the thick of things. I wasn't asked for a fit for work note, which advised a staggered return to work. Within days, despite my recent surgery I was instructed to attend a remote meeting involving several hours of travel without my consent. I made it clear I wasn't happy with this with my manager, who effectively ignored my concerns. Workload has also meant it has been impossible to meet both my post operation physio appointments and even begin the CBT sessions.

The work overload got worse to the point my anxiety related symptoms, the worst of which continue to be chronic insomnia, became so bad I was becoming increasingly fractious in the office to the extent the issue was raised with me by my manager in a one to one last week. Seeing no other choice, I shared the diagnosis of depression and GAD with him. His response via email was to 'chill out' and we should talk about it when he got back from the 2 week holiday he was due to take in a few days (last Friday - he is back in another week and a half)

The GAD symptoms got so bad I escalated the issue to human resources in my managers absence on Monday this week. HR suggested I speak to my managers manager and ask about the possibility of working from home. I emailed him today asking him about this, but also pointed out that I didn't think a work from home arrangement was a solution, and that the real issues were overwork, lack of clarity around roles and responsibility, and confused reporting lines resulting in conflicting priorities. We are meeting on Friday to discuss.

When I met with HR this week, I also shared with them that I have ADHD, and that although medication makes the condition manageable, and I have enjoyed a successful career, ADHD, depression and GAD are apparently pretty closely interlinked making it hard to separate stress related causes from neurological ones.

HR decided not to refer me for an occupational health assessment however, and instead to discuss potential accommodations directly with my managers manager, which I don't feel I can really do without sharing information I am not comfortable sharing with a non health professional.

I am wondering why HR have not arranged for an OH referral. I suspect it is because I am likely to be covered by the Equality Act and thus any recommendations by their OH team are likely to be pretty binding for a national, well funded company. Is this, broadly speaking, correct? And if so, is it in my interests to ask for a referral?

I have received nothing but praise for my work, although I have been in my current role for only 10 months. As for the stress related issues at work - Ive been told there is a question XXXXX XXXXXging over my department, and that my attempts to hire people to ease our workload have been blocked repeatedly because of this. If there is a restructure, it seems pretty clear my team has already been allocated elsewhere, and I am possibly the only person whose position is on the line, which might explain some of the resource issues Ive been having. Im wondering if this is the case, what the best stance is to protect myself?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer :

Hello. A little less than a year.

Ben Jones :

Your rights will very much depend on whether you are considered disabled. In the legal sense of the word, disability can have a broad meaning and there is no single list of conditions that qualify. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If a person satisfies the above elements, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated less favourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples of what could amount to a reasonable adjustment:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. However, it is not a legal requirement that such a referral is made and that would generally only be done if there is a policy specifying this, or if it is not possible to ascertain certain details about the employee's condition and effects it has on them.

For employees who have been seriously ill and absent from work for longer periods, a return to work interview before their proposed return date will assist with establishing their fitness to return and reintroducing them to work. Managers and employees can work together to identify any adjustments which might make their return easier

If someone who is disabled is being treated less favourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (bearing in mind that the time limit for claiming is only 3 months from the date of the alleged discriminatory behaviour taking place).

Ben Jones :

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Customer :

Hi, thanks for your reply. My GP has since signed me off work following issues related to the above. I've since been literally bombarded with angry emails from my manager (bordering on harassment in my opinion), and he has requested a meeting with both him and HR to discuss a back to work strategy this week, which I have declined as Im not meant to be working. I have documented evidence that my manager hasn't respected confidentiality in the past (one of my first tasks in my role was managing out my predecessor) so am unwilling to share any more personal information with him, and have asked for any discussions to be with a medical professional instead. I have shared with the Occupational Health department a confirmed diagnosis of a related neurological condition that would cover me under the Equality Act 2010, but HR have repeatedly stalled on such a referral. So, my question is this - is it in my interests to explicitly and directly ask the Company to consider adjustments in light of a confirmed disability, even granting them access to the info OH already hold, and might this afford me some protection? As it is, it feels as if Ive become a massive HR issue.

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