Dealing with employee bereavement: return to work
Elizabeth Stevens of Steeles (Law) LLP continues a series of articles on dealing with employee bereavement with a look at the measures that employers can take to support employees returning to work after bereavement, and the problems that may arise. By offering bereavement counselling (whether or not as part of an employee assistance programme), and being flexible in relation to working patterns and duties, employers can help employees resume work after a period of bereavement-related absence.
Introduction
Employers have a range of issues to consider when an employee returns to work following bereavement. Individual reaction to bereavement varies enormously and depends on a number of factors, including the relationship of the employee to the deceased and the timing or manner of death. Grief can take many forms and often lasts much longer than people anticipate. It can also result in mood swings and unpredictable behaviour, which can lead to difficulties in the workplace.
Because individuals deal very differently with grief, it is important for employers to take an individual approach to each situation.
Return-to-work meeting
When an employee returns to work after a period of bereavement-related leave a good starting point, as with any absence, is for the employer to hold an informal return-to-work meeting with him or her. Depending on the people and the working relationships involved it may be appropriate for this meeting to be between the employee and a sympathetic member of the HR team rather than the individual's line manager.
The meeting should take place in private as the employee may still be highly emotional and find it difficult to speak about the bereavement. As well as enquiring about the employee's general wellbeing the person conducting the meeting should explore what support can be offered to the employee in the period following the return to work. The employer should also ask the employee whether or not he or she would like someone else to communicate to colleagues on his or her behalf about arrangements following the return to work.
The employer can offer emotional and practical support to assist the employee in carrying out his or her duties during the period after the bereavement.
Emotional support
The employer could refer the employee to its own occupational health team, or encourage him or her to contact the employee support or assistance service for counselling, if it provides this service. If the employer does not provide a counselling service for employees it could refer the employee to external organisations such as Cruse Bereavement Care (details on its website), or the British Association for Counselling and Psychotherapy (details on its website) to find a suitable counsellor trained in bereavement counselling. The employee's GP may also be able to assist in a referral for counselling. Whether or not the employer should pay for counselling provided by an external source depends on the employer's discretion, unless there is a contractual obligation to pay.
Practical support
Some bereaved individuals may find it difficult to undertake their full duties immediately on their return to work. How individuals cope with the demands of work depends on their bereavement reaction and the nature of the work they do. For example, some employees may find it difficult to operate effectively in a public-facing role if they are prone to emotional outbursts. Although there is no specific legal obligation on an employer to do so, there may be measures that it can take, albeit on a temporary basis, to relieve an employee of some of his or her duties. If appropriate, this would need to be addressed with the employee on his or her return to work, with clear parameters set in terms of what duties the employee would, and would not, be expected to carry out and for what period. In these circumstances it is advisable for the employer to schedule a follow-up meeting with the employee to find out how he or she is coping and also to provide the employee with an indication of when he or she would be expected to return to full duties.
Flexible working
For some employees bereavement is much more than a tragic event. It impacts on all areas of their life, particularly where a spouse or partner has died. For example, where employees acquire additional childcare responsibilities, either temporarily or permanently, as a result of a death, they may find it difficult to return to work on a full-time basis. This can be discussed with employees when they return to work and they may wish to consider making a formal application for flexible working.
An employer may have a flexible working policy, under which any employee can apply for a flexible working arrangement. However, to be able to make a request for flexible working under the statutory "right to request" procedure the employee must qualify under the rules by having caring responsibilities for a child under the age of 17 (18 if disabled) or an adult. Employers must consider an application under the flexible working provisions in accordance with set time limits and can reject the request only if there are sound business reasons for doing so, which must fall within one of the specified grounds set out in s.80G of the Employment Rights Act 1996. (See the Right to request flexible working section of the XpertHR employment law manual for more details of the flexible working provisions.)
Under the statutory procedure, if the employer agrees to the employee's request for flexible working arrangements, this will operate as a permanent variation to the employee's contract of employment and he or she will have no right to revert to the original working pattern unless the employer agrees. For this reason, it might be beneficial to both parties for the employer to permit the employee a temporary period of flexible working in the months following bereavement before any permanent arrangement is made.
Performance and conduct problems
Although some employees welcome a return to work as a return to normality, others may find it very difficult to perform their normal duties to the required standard. Unpredictable mood swings may cause tension with clients and between colleagues and may impact on the workplace beyond the individual's own performance.
Where possible, employers should permit employees a period of grace following a bereavement before considering any formal performance procedure (or disciplinary process where the employee's behaviour towards clients and other employees is not acceptable). Problems that persist should be approached informally in the first instance, with the employee's manager holding an informal meeting with the employee to discuss any concerns and to ascertain whether or not anything further can be done to assist the employee at work. If the employee has not already had bereavement counselling, the employer could suggest that he or she consider this at this stage.
Although employers are under no specific legal obligation to make special allowances for bereaved employees, an employment tribunal is likely to start from a position of sympathy for a bereaved individual and would expect the employer to do the same, within reason. However, there may come a point where it is necessary for an employer to follow a formal process with the aim of improving performance or conduct. The employer should be wary of doing so without fully investigating the circumstances and seeking medical advice if it appears that the bereavement has resulted in a longer-term mental health issue.
Stress and depression
A bereaved individual who seeks solace in his or her work and starts to work long hours may be vulnerable to stress and stress-related conditions. Employers should be alert to this risk and tackle it at an early stage to avoid the possibility of a serious and long-term condition arising. An employee who suffers a stress-related condition, even where it has arisen as a result of external factors such as bereavement, may still be able to bring a claim of negligence against the employer. To avoid a potential claim for personal injury the employer must take steps to address the difficulties experienced by the individual in the workplace once it is made aware that the employee is vulnerable to stress.
Similarly, grief can easily lead to depression in vulnerable
individuals, which can result in long-term absence from work. A mental
impairment triggered by bereavement could amount to a disability under the
Disability Discrimination Act 1995 (DDA), in which case the employer will be required
to consider whether or not there are any reasonable adjustments that it can make
to enable the employee to carry out his or her duties. For example, it was
accepted in Shrubsole v The Governors of
Taking a sympathetic approach to bereaved employees and allowing them a degree of flexibility in relation to their return to work may help to avoid long-term problems that could ultimately result in complex and time consuming tribunal claims.
Next week's topic of the week article will be FAQs on dealing with employee bereavement and will be published on 19 October.
Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).
Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.
