Mental health | M&S said it could no longer support a depressed worker - a judge disagreed

M&S said it could no longer support a depressed worker - a judge disagreed

A former M&S worker who was sacked after taking a long time off with mental health issues has won an unfair dismissal case against the company.

An employment tribunal heard that the retail giant sacked Deborah Daisy after she went off sick following a confrontation with a customer who refused to wear a mask while shopping during the November 2020 lockdown.

Daisy was verbally abused by the shopper, who acted aggressively enough to trigger Daisy’s memories of previous incidents such as witnessing an armed robbery.

As a result, she went off sick for five months while suffering with anxiety and depression, triggered by fears about being safe at work from both abusive customers and Covid.

Daisy was deemed unfit to work following two occupational health reports, and the employment tribunal was told that her history of mental health “would suggest that she could be revisiting distressing thoughts and feelings from the armed robbery or other incidents where she felt under threat.”

Daisy expressed concern over M&S’s “lack of action” following this altercation, with the employment panel hearing she was left feeling “vulnerable” at work as a result.

The company carried out internal investigations into Daisy’s personal safety concerns but told her they were unable to share their findings due to GDPR regulations. She told the tribunal that this lack of clarity was a key stumbling block in preventing her from coming back to work.

Bosses eventually terminated Daisy’s job after deciding there were no reasonable adjustments they could make to help her return to work.

After unsuccessfully appealing the decision, she took the firm to tribunal, resulting in Employment Judge Timothy Knowles ruling she was unfairly dismissed.

"It was in my conclusion outside of the band of reasonable responses which might have been adopted by an employer acting reasonably to dismiss without sharing the findings about the issues she had raised in relation to her personal safety and engaging with [Daisy] about how her personal safety fears may be addressed in future”, Judge Knowles said.

He concluded: "I am surprised that those matters were not explored with [Daisy] given that [M&S] is a well-resourced retailer in the UK and given that the plight of shop workers and the abuse they suffer at work is generally well known."

Britain’s workers in the midst of mental health crisis

According to a recent report – the Nuffield Health Healthier Nation Index 2022, which reviewed all aspects of the UK’s mental and physical health – 37% of respondents said that their mental health had worsened over the last year, and a further 33% said that they were not offered any mental health support in the workplace.

The pandemic is still casting its shadow over the workplace; research by the CIPD for their Health & Wellbeing Report 2022 earlier this year found that two-thirds (66%) of HR professionals are concerned about the pandemic on mental health, with nearly one-quarter (24%) stating that Covid-19 anxiety is one of the top three causes of mental health stress in their organisation.

The cost-of-living crisis is also having a serious impact on mental health. Soaring inflation, pressure over jobs and the future, and the possibility for some of having to choose between heating and eating is putting “huge pressure” on those people with mental health problems, Vicky Nash, Head of Policy and Campaigns at mental health campaigning charity Mind, told the Independent. “Poor mental health can make earning and managing money harder, and financial worries can have a huge impact on our mental health,” she said.

Is mental health slipping down HR’s agenda?

Wellbeing and mental health are beginning to slip down the business agenda, a recent report from the CIPD and Simplyhealth found, despite the fact that organisations are still dealing with the fallout from COVID-19.

The Health and Wellbeing at Work 2022 report revealed that the number of HR professionals who think that wellbeing is on the agenda of senior leaders has fallen from 75% to 70% in the past year. There has also been a drop in the proportion of HR professionals who think senior leaders encourage a focus on mental wellbeing through their actions and behaviours, falling from 48% in 2021 to 42% in 2022.

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Similarly, there has been a decrease in respondents who say managers have bought into the importance of wellbeing, dropping from 67% in 2021 to 60% for 2022.

But the report notes that COVID will continue to impact workers for some time and needs to be factored into organisational plans, particularly with regards to effective mental health support and helping people with long COVID. If they don’t, it warns, employers run the risk of losing valuable employees at a time of severe skills shortages.

How to support staff mental health

While it goes without saying that supporting staff with their mental health is the right thing to do from an ethical standpoint, it makes sound business sense, too. Research by Warwick Business School found that companies that don’t provide adequate mental health for their staff risk seeing productivity drop by a quarter. Happy staff are more likely to be engaged and productive – directly correlating to profitability.

So what can you do to encourage your staff to be more open about mental health issues and provide a supportive environment? As mentioned above, one of the key ways of doing this is for leaders to model positive behaviour, prioritising their own wellbeing so that employees feel comfortable following suit, and by sharing their own experiences. A 2019 study by the University of Ottawa found that being open about mental health studies as a leader opened the door for employees to do the same.

It's also important to create a system of regular check-ins with your staff, encouraging them to speak up if they’re struggling – indeed, the authors of a Qualtrics and SAP study into mental health in the workplace, Kelly Greenwood and Natasha Krol, suggested checking in “more than you need to”. They told Harvard Business Review: “Our study with Qualtrics and SAP showed that employees who felt their managers were not good at communicating have been 23% more likely than others to experience mental health declines since the outbreak.

“Make sure you keep your team informed about any organizational changes or updates,” they continued. “Clarify any modified work hours and norms. Remove stress where possible by setting expectations about workloads, prioritising what must get done, and acknowledging what can slide if necessary.”

They also recommended making sure staff are aware of any mental health resources and encouraged to use them – and suggested that investment in mental health training for leaders would be a very positive way forward. Finally, ensuring policies and practices are kind to employee mental health – for example, by framing performance reviews as an opportunity for positive and compassionate feedback instead of a strict comparison against targets – will help ensure a positive and supportive environment.

With the cost-of-living crisis set to deepen, maintaining good workplace mental health is likely to become more of a challenge, too. If the leadership team can prepare for that now, so much the better.

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