Burnout has no standalone legal definition in UK law. However, underlying conditions such as anxiety, depression and chronic stress may amount to a disability under the Equality Act 2010 if they have a substantial and long-term adverse effect on day-to-day activities. Long term means lasting, or likely to last, at least 12 months. We often see employers underestimate this risk because the assessment must be made ignoring the benefit of medication, which can, of course, significantly change the analysis.
Once the legal threshold is met, employers have a duty to make reasonable adjustments. A common misunderstanding by both employers and employees, is that this duty requires employers to implement whatever adjustments the employee requests. In practice, employers often agree to employee-led solutions in the mistaken belief that this demonstrates support, but this can mismanage expectations and create difficulties later.
The duty is, in fact, to make reasonable adjustments to the requirements an employer places on employees. These might be things like requirements to attend the workplace, work particular hours, meet performance standards or undertake specific duties. Employers have to clearly identify what those requirements are and why they are necessary, then consider how the employee’s condition affects their ability to comply and assess what reasonable adjustments could alleviate any resulting disadvantage. The focus should be on providing proper, proportionate support, rather than removing expectations altogether.
This process requires clear and open communication. Managers and leaders should take occupational health advice, and make sure that the referral explains the role requirements, the difficulties that have arisen, whether those difficulties are linked to a disability and what adjustments might be effective. Then they need to assess the reasonableness of any recommendations and discuss these with the employee, with the aim of reaching an agreement.
Employers can, and under the Health and Safety at Work Act 1974, must, take proactive steps to prevent burnout including systems to identify risks such as excessive hours and sustained workload pressures. The Management of Health and Safety at Work Regulations 1999 also require employers to carry out stress risk assessments and provide appropriate training. Managers should not simply defer issues to HR. While HR provides guidance, the manager is the one who understands the operational requirements of the team and must be actively involved in discussions about adjustments.
One thing employers can do is be braver in asking employees about their health and the impact on their role. Avoiding these conversations can prevent employers from misunderstanding the individual’s circumstances. Mental health and mental wellbeing issues are highly individual, and assumptions should not be made. Finally, there is a record keeping aspect, as employers should always document conversations, medical evidence, adjustments considered and the rationale for decisions.
Linky Trott is a specialist in senior executive and employer employment law at Edwin Coe
