Stress Leave: Is it a legal entitlement?
Increasingly Employers are receiving medical certificates from Employees stating that they are currently off work due to ‘stress leave’ – in many cases the Doctor specifying this to be “work related stress”.
When receiving such certificates, what are the Employer’s obligations to pay the Employee for this period of absence?
First and foremost – there are no provisions in legislation for paid stress leave, this all falls under the category of ‘sick leave’ and therefore, if the Employee has a current entitlement to paid sick leave, then this may be used to cover any period of time off work for ‘stress’ related symptoms.
Stress Leave is not even a recognised legal concept, with this claim occurring most frequently when the Employee is facing a challenging situation that may impact on their continued employment status – i.e. a Serious Misconduct Disciplinary or Redundancy Consultation event or in the context of a bullying and harassment claim that they are pursuing.
Such medical certificates are often based on ‘patient self-reporting’ rather than Doctor ‘medical diagnosis’. This is not to say that the Employer can disregard such claims, with the Employer having a duty and responsibility to contact the Employee to enquire into the nature of the events that have brought rise to the claim – specifically where this may be related to a bullying and/or harassment claim.
If the Employer does not seek to ‘challenge’ the Employee on any questionable claims, this can form the impression that the claim is justified or accepted. However, where the Employer accepts that events occurring within the work environment could be reasonably considered to have caused the Employee genuine harm (i.e. a bullying and harassment claim) the Employer must be seen to treat the reported stress seriously until such time as the matter is further investigated. This may justify the Employer paying the Employee for a period of absence, even where an entitlement to paid sick leave is not available.
However, where an Employee has submitted a ‘stress leave’ medical certificate in the midst of a Restructure Consultation or Disciplinary Process - while this may result in the need to temporarily pause the process it does not provide any justification to discontinue the process. Case law confirms that an Employer is not unreasonably required to delay such process due to the Employee making themselves unavailable due to alleged stress. A temporary delay may therefore be applicable however the Employer is within their right to set a date for a response and then to make a decision at that time even if the Employee elects not to respond.
While this situation can be frustrating for the Employer it does not render the Employer powerless – however an Employer could be judged on their reaction and response to the claim if a personal grievance is to arise so procedurally fair processes are still required.
If you are facing a ‘stress leave’ claim and need advice on how to lawfully manage through this, please feel free to give us a call.