This is an inversion of the cliché phrase ”a marriage made in heaven” to signify the unhappiness that can be experienced in staying in an unhappy marriage, as penned by Oscar Wilde in, The Importance of Being Earnest.
Interestingly, Wilde did not actually agree that it was important to be earnest at all and rather that the rigid Victorian views of the time were extremely unhealthy. He saw through the Victorian cultural values and recognised that they were actually harmful to a person’s wellbeing.
Wellbeing is on the tips of everyone’s tongue right now, particularly employers. Divorce can be an incredibly hard journey and when someone is trying to navigate that as well as continue to work in the same way, it can prove hugely stressful.
The impact on the couple going through separation and divorce can be enormous but is enough consideration given to the impact on their work, the impact on their peers at work who are helping them through and most significantly, from a business point of view, the impact on their performance?
It is said anecdotally that divorce comes second to bereavement in terms of the impact on a person’s wellbeing. Why then is it the case that employers are not engaging in policies to deal with divorce and separation?
I can see from a family lawyer perspective that it’s needed.
The cost of relationship breakdown for the tax payer is around £51 billion (and rising), which includes welfare benefits, physical and mental health, police and prisons, courts and legal services and so on. Though, these figures go nowhere to calculating the impact on business performance and productivity.
The actual impact in business will probably never be fully quantified, though it is said that productivity can decrease by as much as 40% and this isn’t surprising.
Of course, one must look at the bigger picture and canny employers will acknowledge that it won’t be forever. Given that wellbeing is and should be so much more important these days than ever before, should it not be that employers pay this the attention it so rightly deserves?
We regularly help clients who are going through hugely stressful family proceedings whilst holding down their personal life and their work life. Of course, as lawyers, we try to shoulder the burden as much as possible and to assist we will often speak out of hours, over the weekend or even implement small strategies such as saving up e-mails to send in one go rather than throughout the working day.
The employment law perspective
Employees going through separation or divorce have a number of potential employment claims that provide some measure of protection faced with such challenging circumstances. These include:
- Unfair dismissal based on poor performance: There is a risk that if an employee faced with separation and divorce proceedings suffers a dip in performance, their employer may be tempted to introduce a performance improvement plan.
Following such a plan through to its conclusion with the employee being dismissed on the grounds of poor performance may give the employee a claim of unfair dismissal, particularly if the employer has failed to adequately take into account the inevitable impact the employee’s family related issues may have had on their performance. Failure to make appropriate adjustments and offer appropriate support may well lead a tribunal to decide the dismissal was unfair both substantively and procedurally.
- Constructive dismissal: Constructive dismissal is a type of unfair dismissal when an employee feels forced to leave their job against their will because of their employer’s conduct.
Recent studies have shown that employees facing separation and divorce are more likely to leave an SME and this is in turn linked to the level of support provided by their employer.
The qualifying period criteria and compensation award for constructive dismissal are calculated in precisely the same way as for unfair dismissal.
- Disability discrimination based on stress, anxiety and depression: The onset of anxiety and depression that often comes with divorce may qualify the employee as disabled, a protected characteristic under the Equality Act 2010. Employers need to be careful not to treat the employee less favourably or subject them to a disadvantage for a reason that relates to their disability, including dismissal. Employers need also to ensure they do not indirectly discriminate against an employee by having a particular policy or way of working that has a worse impact on the employee compared to employees who are not disabled. The Equality Act 2010 also protects employees from discrimination arising from disability. This protects an employee from being treated badly because of something connected to their disability.
Under the Equality Act 2010, employers also have a duty to make reasonable adjustments to ensure that the employee’s disability is accommodated as part of their day to day working. Reasonable adjustments could include accommodating more flexible working arrangements, adjusting performance targets and time off to attend mediation appointments and court hearings.
- Personal injury claim for psychiatric injury: Employees who feel overworked and under supported, and who claim that they have been bullied or harassed in the workplace may be able to bring a claim of psychiatric injury in the civil courts.
An employee who believes that they have suffered psychiatric injury in the workplace may seek to pursue a claim against their employer for compensation for personal injury, breach of contract and/or under the Protection from Harassment Act 1997 in the civil courts. The level of liability that such claims can attract if the employer is found to be negligent or in breach of contract varies but can be as high as over £100,000 in the most serious cases.
What steps can employers take?
There are a number of practical steps employers ought to consider introducing to support employees faced with divorce including:
- Paying serious regard to the employer’s duty to make reasonable adjustments to the employee’s working conditions.
- Adjusting and relaxing work performance targets on a temporary basis.
- Introduction of an employee assistance programme to provide mental health and wellbeing support.
- A sympathetic approach to flexible working to allow for attendance at separation, divorce and children proceedings and meetings.
- Introducing regular catch up meetings where support can be offered.
- Making appropriate recommendations for support organisations or separation counselling.
- Ensuring appropriate protection is in place to ensure the employee’s privacy is maintained.
- Providing support in the workplace in terms of allowing flexibility an additional time off for childcare.
By helping employees deal with separation and divorce, the hope is this will result in the employee feeling supported. This in turn will result in loyalty to the employer in the long term, as well as bolstering work productivity as they come out of the other side of what is an emotionally challenging period of the employee’s life.
Grainne Fahy is Head of Family Law and Julian Cox is Head of Employment at law firm BLM