This guest post was written by a family solicitor from DPP Law

Mental health has been moving increasingly towards the forefront of public consciousness throughout the last few years. However, there is still a degree of taboo – and, often, a feeling of guilt – surrounding the concept of taking a sick day to protect our mental wellbeing.
So what are the facts? Can an employee legally take a day off for the benefit of their mental health?

Sick Days – Physical and Mental

According to the Equality Act 2010, employers are required to permit days off for any staff members with a disability – be it physical or mental. This constitutes a part of their legal obligations to “provide reasonable adjustments” to make work manageable for people of all physical and mental abilities. According to the act, the term “disability” refers to “a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities”.

Many people are concerned that taking a day off work as a result of stress, anxiety, depression or any other invisible issue of this kind will result in their being perceived as weak or lazy, and may affect their colleagues’ attitudes towards them or their likelihood of any career progression. However, from a legal standpoint, there should never be any professional discrimination against an individual with an illness or disability – no matter what kind.

It does not matter whether your condition is “official” or not. While many people are particularly nervous about taking time off for an issue that is as yet undiagnosed, it’s worth remembering that you would not be required to attend work with a suspected broken bone just because you have not yet had the exact nature of your injury confirmed.

What Should Be Asked and What Should I Tell?

Your boss should never pry into the details of your issue when you request time off. They should not ask questions about your condition unless the purpose of those questions is to:

• Decide if you can carry out a task that is an essential part of your job
• Decide if reasonable adjustments should be made to help make your work easier
• Improve their professional monitoring process
• Improve the availability and quality of the employment opportunities they provide for people with health conditions
• Make enquiries for the purposes of national security checks

These subjects should always be approached sensitively, and you have the right to refuse to answer any questions you are asked. However, you cannot claim that your employers have acted in a discriminatory fashion towards you if you have not first been open with them about any suspected issue or official diagnosis in the first place.

What if I Don’t Have a “Disability”?

Taking a day off for stress should still be permitted if you do not have any diagnosed or long term condition. Companies across the world often encourage “mental health days” that serve as a preventative measure; in theory, the more you invest in your mental health at an early stage, the less likely it is that problems will be exacerbated. Forcing yourself to work despite worsening mental health problems may cause severe knock-on effects, which could result in the need to take a sizeable amount of time off at a later date. For this reason, many employers appreciate that it is better to take steps to reinforce the wellbeing of their staff as soon as any potential problem arises.

Your HR department has a duty to ensure that your company upholds the obligations set out under the Equality Act 2010. If you have reason to believe that your employer is not taking your mental health concerns seriously, your next step should be to report it.

Should there continue to be problems, or if you have strong proof that your needs are not being met, it may be worth making contact with a legal professional. In some cases, if an employer purposefully ignores the requirements of an individual with a mental health diagnosis, that person may struggle to continue working at the company in question. This may be proven to constitute unfair dismissal or, at the very least, a breach of the Equality Act 2010.