We have an employee who is not performing and has been spoken to informally about performance on a number of occasions. We were at the point of commencing a formal performance improvement plan, however the employee has now submitted a fit note citing that he is suffering from work related stress. The employee’s line manager thinks that the employee has set this up to avoid doing work. How do I handle it?


Sharon McArdle writes:

Generally speaking, a doctor’s certificate relating to an employee’s health should be accepted at face value unless there is very strong evidence to contradict it. Assuming therefore that the employee is genuinely suffering from work related stress it will not be possible to commence a performance improvement plan.

This can sometimes be frustrating for a line manager, who will have to deal with the absence, whilst also dealing with all of the responsibilities and pressures of his or her team. However, it is important to note that the need to implement a performance improvement plan is not the same as a need to progress a disciplinary matter. There should be no need for an employer to progress a performance improvement plan in the employee’s absence an indeed there would seem to be no way of doing so.

Therefore, proceeding on the basis that the employee’s work related stress is genuine, it is important to consider what the causes of such stress might be. Work related stress can have many causes including lack of supervision, inadequate training, excessive working hours, bullying or management style. It is entirely possible that work related stress could be causing the employee’s poor performance.

The Labour Relations Agency advise in their very useful guidance on the subject; “Advice on Managing Poor Performance at work”, that if there are indications that work related stress is having a negative impact on performance, it is “vital that employers fully consider whether the work itself, the management of the work, or volume of work have contributed to create unfair stress on the employee which is a significant factor in the reduced or inadequate performance”.

Employers need to take action in respect of stress because, as well as having a negative impact on performance and productivity, the employer could also be liable for a psychiatric illness which the employee might suffer.
Employers are subject to a statutory duty under Health and Safety legislation to undertake risk assessments and manage activities to reduce the incidence of stress at work. Further, employers are subject to a common law duty of care under the tort of negligence, to take reasonable care for the health and safety of employees in the workplace. In addition, it is an implied term of every employment contract that the employer will take reasonable steps to ensure the safety of its employees at work.

Once an employee has taken a period of absence due to work related stress, the employer is on notice that there is a risk of further stress including psychiatric or physical injury, should the employer not address the causes of stress. If the employer does not address these issues, it could find itself liable for psychiatric or physical injury caused by stress, if this subsequently occurred.

During the employee’s sickness absence the Employer can make reasonable contact with the employee. It may be worthwhile seeking, with the employee’s consent, a GP report or Occupational Health Report, to establish the employee’s perceived causes of work-related stress. A sickness absence review meeting could also be held to try and discuss the potential causes.

Once the causes of stress have been identified then it may be possible to resolve these causes. For example if inadequate training is causing stress, the employee could be provided with additional training. If the stress relates to poor management supervision, it would be necessary to consider training for the line manager. The steps taken to resolve work-related stress may also deal with the employee’s performance issues.

The line manager’s attitude to the employee’s absence may indicate that there are issues between the employee in question and his line manager, which could be contributing to or causing performance issues and/or work related stress. Meditation between the two individuals could be an option to consider in the longer term if both parties are agreeable.

However if the situation is more serious, there could follow allegations of bullying and harassment, which if warranted could lead to disciplinary proceedings against the employee’s line manager.
Currently, the employee’s line manager believes that there is no truth in the suggestion that the employee is suffering from work related stress. It may be that the line manager would benefit from training on managing the risks contributing to stress.

If the employer genuinely believed that the employee was not ill, it would be necessary to have firm and reliable evidence which was fairly obtained in order to act on such a belief and would need to follow a full and proper disciplinary procedure to deal with unauthorised absence. However, in the case of stress absence it would seem very difficult to prove that a person was not genuinely ill.

In view of the employer’s numerous obligations it would be advisable to deal with the employee’s sickness absence in a sensitive manner and in line with best practice. A performance improvement plan, if warranted, could be implemented after a reasonable period on the employee’s return, provided that the employer is content that it has addressed any issues which have caused or contributed to work related stress.