Legal Managing misconduct arising from mental illness

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As Mental Health Awareness Week kicks off, Richard Brown outlines what HR should do if an employee claims their behaviour stems from their condition – and the consequences of getting it wrong

Employees experiencing mental illness at work are increasingly recognised as a group requiring greater support and understanding. Two-thirds of the population experiences mental health problems at some point in their lives, and a recent study from the Mental Health Foundation found that one in six people experience mental health problems in the workplace.

Mental Health Awareness Week recognises the need for employers to take proactive steps to reduce the stigma of mental health in the workplace and to help dispel the myths around it. But how should an employer respond when an employee’s conduct crosses the line into misconduct, where this relates to their mental health? What is an employer’s duty of care, how much latitude is an employer required to give and what are the legal implications of failing to get it right?

One of the first steps an employer can take is to implement a mental health or occupational health policy that will provide a framework for dealing with mental ill-health in the workplace. A practical step is to train managers on the impact that deteriorating mental health can have on behaviour. This approach enables preventative and supportive measures to be put in place before problems arise.

Getting the approach right is essential to avoiding the tribunal or to effectively defending a tribunal claim. Recent case law indicates that discrimination arising from a disability (which includes mental impairment), introduced by section 15 of the Equality Act 2010, affords individuals a wider protection than relying on a failure to make reasonable adjustments. There has been an increase in tribunal claims relying on this provision.

Section 15 refers to discrimination occurring where the employer treats the employee unfavourably “because of something arising in consequence of their disability”. Unlike most other forms of discrimination, no comparator is required (which arguably makes it easier to bring a claim), although the provision also contains a justification defence. Employers may therefore be able to objectively justify their decision to impose a disciplinary penalty on this basis.

For example, in the tribunal case of Nally v Freshfields Care Ltd, Mr Nally suffered from PTSD and was dismissed after two outbursts at work. Although a medical report had been requested after the first incident, when he told his employers about his condition, they failed to follow up on this. The tribunal ruled that his dismissal amounted to discrimination arising from his disability under section 15. His employers should have considered delaying his dismissal to obtain a medical report. They could also have considered demotion or suspension.

If a misconduct situation arises, and the employee argues that their behaviour was down to their disability, employers should:

  • delay a disciplinary hearing until they have received medical advice to determine whether the employee is disabled under the statutory definition;
  • make a referral to occupational health (OH) experts who specialise in mental health, with detailed questions around the statutory definition of disability. Not every person who has a mental illness will meet the legal definition and be protected;
  • not simply ‘rubber stamp’ the views from OH – the report needs to properly considered. If it is clear from the report that the person is disabled, and the employer had actual or constructive knowledge of the disability at the time of the incident, this will affect the sanction to be applied at the disciplinary hearing; and
  • give serious consideration to applying a lesser sanction or, depending on the facts, taking no action. If dismissal is being considered, legal advice should be taken.
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