Understanding your rights – taking time off work for stress

The rates of work-related stress have risen sharply in recent years. Our employment team can help you understand the underlying causes and help get you back to work if you’ve been signed off for stress. Here they answer some common questions about your rights and set out some of the steps you can take.

Stress at work is a big issue at the moment – why is this?

Stress has become much more commonplace as a result of the pandemic. This is partly due to anxiety about contracting Covid, but also more people are now working from home, which may be convenient, but can give rise to its own problems and feelings of isolation. If you’re signed off work for stress then worrying about losing pay and potentially losing your job can then aggravate the stress.

It’s also a big issue for employers, especially those who want to do the right thing by their staff and want to get them back to work but don’t know how to go about it.

What help is available if I’m dealing with stress at work?

If you can’t afford a solicitor there are agencies who can provide assistance. At the Law Centre we provide a short free* appointment when we can give some preliminary advice about how to approach the problem.

Many of our clients are seeking advice about their rights when they have been sacked because of long-term absence caused by stress. However, we can also help people who are still employed but have been signed off work because of stress. In those cases we may be able to provide constructive help focussed on getting them back to work.

What are some of the causes of stress at work?

Before making a plan of how to return to the workplace, it’s important to understand the cause of the stress in the first place. Obviously there are many causes but they can generally be divided into three areas:

Conditions at work, for example:

• Bullying
• Negative relationships with colleagues
• Excessive workload
• Failure to meet targets

A non-work related situation/event that spills over into the workplace, for example:

• Bereavement, divorce or difficult domestic circumstances
• Child-care responsibilities

A long-term medical condition, for example:

• underlying anxiety/depression which is normally controlled by medication but which has ceased to be under control for some reason

We know that, in practice, for many people the situation can be very complex with all three factors involved, but understanding the causes will be important for deciding what your rights are.

What are my rights if I’ve been signed off work for stress?

Your rights will partly depend on whether you are classified as an employee or a worker (you can read more about understanding your employment status here).

The first set of rights that apply to stress at work are if your symptoms amount to a disability. This is where the adverse effect on your day-to-day activities is substantial and long term. Some examples would be sleeplessness, inability to concentrate, serious mood swings that have gone on or are likely to go on for many months.

This will trigger the right not to be discriminated against because of that disability, and, importantly the duty on the employer to make reasonable adjustments to reduce the impact the stress is having on your ability to work or the circumstances causing that stress. For example:

• If your stress is caused by too much work, your employer would have a duty to consider reducing that level of work or temporarily reduce your hours
• If you’re off work, they should introduce a phased return to work with fewer hours
• If your stress is caused by difficult relationships at work, it may be possible to move one of the employees, although this can be difficult in practice

Making these adjustment is more difficult if the causes are not work-related, but even then, providing you with a supportive work environment can be crucial to your being able to cope.

As soon as it’s clear that your situation is serious, your employer should refer you to an occupational health specialist to see what adjustments they think should be made.

Where the symptoms amount to a disability, these obligations apply to both employees and workers. However, proving you’re suffering from a disability in the context of anxiety is not straightforward; your symptoms do need to be both severe and long-term.

If your symptoms don’t amount to a disability, you do still have some protection if you are an employee and you have been employed by that employer for at least two years. For example, if you are dismissed because of your absence due to stress, that may well be unfair if your employer has done nothing to try to address the causes. In effect this means the employer also has a similar duty to make adjustments and you, as the employee, have some leverage during the employment to persuade the employer to do so.

If your symptoms don’t amount to a disability and you haven’t been employed for two years, then the situation is more difficult, unless you can show that the cause is linked to some form of unlawful discrimination, such as race, disability, gender, age. For example, if the cause of your stress is linked to the fact that you are pregnant but you are having difficulty getting time off for ante-natal appointments, this it may also trigger a claim for pregnancy discrimination.

If I do have those rights, what can I do about it?

The first step you should take is to raise the problem through the grievance procedure and ask for adjustments or other steps to be taken. If that doesn’t produce results, the next step depends on whether or not you can show you are suffering from a disability because of your stress. If you can, then the failure to make reasonable adjustments will constitute discrimination which can form the subject of a complaint to the Employment Tribunal, even when the employment is ongoing.

It’s important to remember that there are strict time limits for bringing a complaint. Have in mind, you have three months from the date that you had to take a significant amount of time off. These time limits must be complied with even if you’re going through the grievance procedure.

If your symptoms don’t amount to a disability, your rights are more limited, unless you are going to treat it as a reason for resigning. Be aware that this is a very drastic step and you should never do so without first taking advice from a law centre, citizens’ advice or one of the specialist front-line advisers such as those dealing with maternity and women’s rights.

How can an adviser help me?

Wherever possible, the adviser will begin by exploring the possibility of getting you back to work and the adjustments required to make that possible. This may involve writing a letter to the employer suggesting the adjustments that need to be made. In many cases this may be all that’s needed to produce a constructive conversation.

If further intervention is needed, the mediation service DRAW (Dispute Resolution Assistance in the Workplace) provides skilled people to mediate these issues. This is free of charge, including when the employment is on-going and there is no tribunal claim. There are also schemes for putting GP surgeries and other NHS advisers in touch with rights advisers.

When should I seek advice?

A key problem is that very often people leave it very late before seeking advice by which time attitudes on both sides have become entrenched. They may have lost confidence in being able to return to work, feel they’re going to be victimised, or are insistent on getting an apology. All these things make it more difficult and may mean having to move to the next stage of starting proceedings. However, this is very stressful and should be seen as a last resort.

It is therefore really important to seek advice at an early stage. Don’t let the problem fester – being signed off work week after week and just waiting to see what’s going to happen is not the best way to approach the problem. You can find information about advice agencies on-line: the GLA site has a very useful Employment Rights Hub and your local Citizens’ Advice will be able to help and signpost you. You can find out if we can help you here.

It’s also very important to keep a positive attitude that you do want to return to work and have realistic suggestions about how that can be achieved.

* We offer a free 20 minute appointment with a specialist employment adviser if your annual household income is below £45,000. If your income is above this, we charge £250 plus VAT for an initial appointment lasting up to an hour. You can find out if we can help you here.