How to help an employee suffering from stress when bound by a duty of confidentiality

Posted in : Seamus Says - Employment Law Discussion on 1 March 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

"We have an in-house occupational health team who offer a confidential counselling service for any employee who is experiencing stress. The problem is that this is a confidential service. There's no communication of the issue to managers or HR who could potentially act to support the employee and possibly address the cause of stress if it's work-related. Can you suggest any way around this if indeed there is any way around this?"

Seamus: So, this sounds like an employee assistance service that the employer has in place. So, it basically offers one-to-one confidential counselling for the employee. The employer is not necessarily aware the employee is even attending that counselling. It basically works on the basis that the employer contracts with a third-party to provide this service to the employees.

So, slightly different to the scenario that we've discussed before, where you're having potentially problems with an employee and you want to send them to occupational health (OH) to find out if they're fit to work. That's different to this. There's no requirement for this counselling service to tell the employer what's being discussed whilst in these sessions.

My understanding is that it could be about anything that the employees are going to talk about. It could be personal stuff. It could be work stuff. If it is work stuff, I would imagine the counselling service will be telling the employee, "Go and talk to your employer. This is something you need to sort out".

In terms of 'can you suggest a way around this', there is no way that you can get that confidential counselling service to tell you what's going on. That's just not happening.

Scott: It wouldn't be confidential.

Seamus: That just defeats the purpose of it. I think it does come down to being aware of your employees and what's going on. If you have an employee that you recognise is struggling, you can see the quality of their work changing, maybe you know they've had a death in the family or they're caring for someone or they're sick, it's about interaction with that employee and checking in with them. "Are you okay? How are you getting on? How are you dealing with things?"

If you do think there are problems there that's causing problems and work that you can assist with, you have to refer them, then, to OH to ask if they're fit to work on what needs to be done to assist them. You can't use that confidential counselling service as that means to get that information.

Scott: They're two separate services.

Seamus: Yeah.

Scott: One of them is there to assist the employee. If they need it for anything at all, you can go there. That doesn't stop just because somebody is or isn't going to the confidential service. It wouldn't stop any employer from referring an employee to occupational health and saying, "Is this person fit to work?" It may well come out that they've been going to the counselling service or it may not, but the employer would never get access to that because it defeats the whole purpose of saying, "You have this free confidential service".

In the long run, it's helpful if employees have stress issues, whether they're at work or whether they're at home or in their private life. It's helpful for employee hours to provide that service in some way so they get back to work and get rid of their stress.

So, you usually pay an annual stipend and Inspire or whoever it happens to be would come back and say, "Look, it's been used so many times and we're giving so many hours' advice to so many employees", but that's about it.

Seamus: That's the height of the information you're going to get.

Scott: Yeah, and quite right too.


This article is correct at 01/03/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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