Can you legally fire staff with mental illness?

How do you handle employees when you notice a decline in performance?

Can you legally fire staff with mental illness?

Mental health discrimination is now officially recognised in Singapore, after the recent update of guidelines for fair employment practices by TAFEP.

The review is timely, as the city-state’s health minister revealed that an average of 60,000 Singaporeans have sought help for mental disorders each year over the last three years. The average age of sufferers is between 40 and 50 years old.

Does TAFEP’s guidelines update have any legal repercussions for employers? The short answer is ‘yes’.

Employees can file an unfair dismissal case with the Ministry of Manpower (MOM) due to discrimination.

According to the latest guidelines on wrongful dismissals, employees can also make the legal claim that they were fired to “deprive the employee of benefits or entitlements”.

READ MORE: Would you spot a mentally ill employee?

In cases where MOM has proof of workplace discrimination, even giving the necessary firing notice to employees can still lead to legal trouble.

“To succeed in claiming that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal,” according to tripartite guidelines.

“Wrongful reasons include discrimination, deprivation of benefit, or to punish an employee for exercising his employment right.

“If an employer gives a reason for dismissal with notice, but the reason given is proven to be false, the dismissal would also be wrongful.”

MOM has acknowledged there may be situations where an employee is assessed as being “too ill for the job”, and where excessive or repeated absence adversely impacts the company’s work.

In such situations, the employer can terminate employment after giving due notice or pay in lieu of notice, said MOM.

Despite the right to terminate, staff covered by the Employment Act who feel they’ve been unfairly dismissed can still file a case with the ministry, pending investigations.

READ MORE: Sick in Singapore: Can you legally fire staff on medical leave?

Offer staff support  a better alternative
Regardless, MOM has made it clear that termination of employment is a “very serious matter” with wide-ranging implications for an employee.

This is why they urge employers to only resort to it “after very careful consideration” based on relevant and objective performance criteria.

If leaders have noticed a difference or slip in performance for employees with mental health conditions, one industry expert told HRD there is a way to better manage the difficult situation.

Leaders can take disciplinary action in the form of a formalised performance management process — but it is crucial to acknowledge the possibly “devastating” impact on someone with mental illness.

“It’s important to question whether somebody with a mental illness is actually well enough to properly respond to a process and make decisions for themselves,” he said.

“That’s always a difficult issue. Essentially it is a medical question rather than a legal question, but it’s something that people often don’t pay enough attention to.

“Instead, they just launch straight into a process and wonder why it doesn’t go very well.”

READ MORE: Is HR doing enough for mental health?

He shared tips to ensure the process is objective and as fair as possible:

  • Allow a third person or ‘support person’ to be present
  • Assess, with independent medical advice if necessary, whether the process will lead to further risk of harm — to self or others
  • Offer follow-up support through Employee Assistance Programs (EAP)

“Lots of organisations have EAPs, which allow you to separate the support and treatment of the mental health condition vis a vis the work issues,” he said.

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