Keeping an investigation moving when an employee is absent with stress

That is rarely an easy question. Managers can understandably worry about making someone's health worse by continuing to contact them or asking them to engage with a process when they are already struggling. But simply putting everything on hold until the employee returns may not be the best answer either. The investigation stalls, the uncertainty continues and the pressure can build on both sides.

A recent decision of Guernsey's Employment & Discrimination Tribunal provides a useful steer: supporting an employee who is struggling with their health does not necessarily mean putting an important workplace process on hold indefinitely.
What happened in Herschel?

The case concerned an employee who was absent with work-related stress while his employer investigated safeguarding concerns arising from an incident involving pupils.

The Tribunal found that, under Guernsey law, the employee was disabled with work-related stress.

The employer did not simply continue with its usual process. It postponed a meeting, agreed that the employee could respond in writing instead, extended deadlines and obtained Occupational Health advice. The employee was considered unfit for work but fit to engage with the investigation.

Further extensions were given, but the responses the employer was seeking were still not provided. Eventually, the employer decided that the investigation needed to move forward and the Tribunal found that decision was proportionate. In particular, it considered that the employer had a legitimate aim of conducting the safeguarding investigation within a reasonable time and that the way it had adapted and progressed the process was proportionate to that aim.

A useful point about disability
What makes Herschel particularly interesting is that this was not a case where the employer succeeded because the employee's stress was found not to amount to a disability; the Tribunal found that he was disabled.  The issue was what the employer should do once disability was established.

The decision provides a useful reminder that disability does not mean that an investigation has to stop. Equally, it does not mean that an employer can simply carry on regardless.  The question is how the process can be adapted so that the employee has a genuine opportunity to participate, while still allowing the employer to deal with the underlying issue.

What can managers take from it?
There is no fixed point at which an employer can say, “We have waited long enough.”

In Herschel, the Tribunal looked at the circumstances as a whole. By the time the employer proceeded, the employee had been absent for around four months, had had the allegations for several weeks, had been given extensions and had not provided a response. Occupational Health had also advised that he was fit to engage with the investigation.

Now, that does not mean that four months, or a particular number of extensions, creates a rule for other employers.
The useful questions are more practical:

• What can we change to make it easier for the employee to participate?
• Have we given them a genuine opportunity to respond?
• Have we taken appropriate medical or Occupational Health advice?
• Is there a legitimate reason why the investigation needs to move forward?
• If we delay further, is that actually helping anyone?