It’s well known that workload can cause stress, but to what extent are employers liable when an employee suffers? This question was answered in the recent case of Aylott versus BPP University. Gareth Edwards, a partner in the employment team at VWV, says the employment tribunal found that a failure to address workload concerns may amount to breach of contract and discrimination claims.
The tribunal held that a sequence of failings by the employer relating to workload and mental health, when viewed cumulatively, “amounted to a fundamental breach of the employee’s employment contract and discrimination arising from disability,” explains Mr Edwards.
THE FACTS OF THE CASE
Mrs Aylott was employed as a lecturer by BPP University (a private institution in London) from 2013 until her resignation in 2019. During her employment, she applied for a senior role and, as part of a health declaration, informed her employer that she suffered from anxiety, depression and chronic back pain. She also suffered from autistic spectrum disorder, which remained undiagnosed until after her resignation.
According to the case report, the University was aware that Mrs Aylott was experiencing some significant challenges in her personal life. Her husband passed away suddenly, and her teenage son was diagnosed with myalgic encephalomyelitis (ME). However, there was a ‘long hours’ culture among the management team and Mrs Aylott worked in excess of 60 hours a week, including weekends and evenings. In early 2018, she advised her line manager that she was experiencing symptoms of anxiety and was taking antidepressants. She cancelled holiday to accommodate the leave of a colleague and by September 2018 was described as ‘manic’ and ‘frazzled’.
At this time, a complaint was made by another department that Mrs Aylott was pushing back on requests made of her, citing the pressures of her workload, and that the tone of some of her responses had become abrupt. She was distressed by the complaint and its handling. She confided in her line manager that she was not coping and was self-medicating with alcohol. She provided a medical certificate to work reduced hours and although it was widely acknowledged by her managers that she was struggling and her health was suffering, no steps were taken to refer her to occupational health, despite her request.
As a result of low mood, Mrs Aylott was signed off work by her GP in late 2018. Following the expiry of her entitlement to 15 days contractual sick pay, the University did not exercise its discretion to provide any further sick pay, even though it had provided discretionary sick pay to other employees in the past.
Mrs Aylott raised a grievance in relation to workload and treatment, claiming that she was being treated less favourably because of her mental health conditions, which amounted to a disability. At the grievance meeting, there was no real attempt to address her concerns and she was offered an exit under a settlement agreement. It also came to Mrs Aylott’s attention that a colleague had referred to her as ‘mad as a box of frogs, but a good worker’.
She resigned and brought a claim for constructive unfair dismissal, unfavourable treatment arising from disability, direct and indirect disability discrimination, harassment relating to her disability and failure to make reasonable adjustments.
While some claims were dismissed, the tribunal found that Mrs Aylott had been “constructively unfairly dismissed on the basis that the University’s conduct had undermined trust and confidence”. It was also held that an occupational health referral for Mrs Aylott was not arranged quickly, and there had been a rush to secure her departure from the University as a result of stigma arising from her mental health. As this stigma arose from her disability, Mr Edwards is not surprised that the unfavourable treatment she received in being offered a settlement agreement, rather than a resolution to her grievances, and the lack of occupational health support, was found to be discriminatory. This was why she was entitled to compensation for financial loss and injury to feelings.
So, what should employers do to protect employees and stay out of tribunals? For Mr Edwards, the starting point is to recognise that mental health issues in the workplace are increasingly being recognised. “Demanding workloads over sustained periods can cause or exacerbate mental health challenges,” he notes.
In order to maintain an effective workforce and promote the wellbeing of staff, he says: “It is important that managers understand their duties and fulfil their legal obligations in relation to the mental welfare of their employees.”
Mr Edwards warns employers to be “vigilant for signs that may indicate a potential mental health issue and engage with employees at an early stage to discuss whether any reasonable adjustments can be made to accommodate their needs”.
If a problem arises, Mr Edwards thinks it is important that options should be explored to enable an employee to continue in their role, with a timely referral to occupational health so that they can benefit from medical advice. And to help managers identify and actively support staff, reduce stigma and help avoid costly discrimination claims, appropriate training should be put in place.