Employers must be cautious when initiating performance improvement plans for workers undergoing mental distress
Motivating an underperforming employee – who is also experiencing poor mental health – requires employers to have a holistic understanding of their employee’s ordeal.
As seen in an Employment Court ruling in 2018, an employer cannot head straight into a performance review of a staff member who is known to struggle with mental health issues.
Instead, an employer must first consider the underlying cause of the person’s poor work quality or low productivity, and review medical evidence showing the link between their performance and mental condition.
In the landmark case FGH v RST, the employee – whose work quality began to fall behind – was subjected to a performance improvement plan even after the employee had notified the management of her mental health issues, which included anxiety and attention deficit disorder.
Failing to consider the employee’s predicament, the manager proceeded with the performance review and eventually placed the worker under close supervision. After some time, the employee’s performance continued to lag. For this, she received a written warning.
The employee secured medical proof of her psychological condition and said her ongoing struggles were brought about by difficulties she faced with her manager and the performance review process.
The worker lodged a personal grievance complaint against her employer, claiming the management failed to comply with workplace health and safety regulations. The Employment Relations Authority initially junked the petition, but the Employment Court sided with the complainant.
The court ruled such failure to create a safe and healthy environment for a worker undergoing mental distress purportedly set the worker at a disadvantage and constituted personal grievance as defined by the Employment Relations Act 2000.
How can HR support underperforming employees with mental health issues?
- Hold an informal check-in with the employee. Discuss observations made regarding their performance and inquire how they believe their manager can best support them.
- Guide the employee in accessing Employee Assistance Programmes and other employer-sponsored benefits, if available.
- Discuss options for paid/unpaid leave or flexible work arrangements where applicable.
- If the employee raises the idea of departing from the company, discuss how HR can support them in exiting gracefully from the organisation. (Note: The employee should be the one to initiate such discussion, not HR, so as to avoid any claims of constructive dismissal later on.)
“If the employer goes down a capacity track,” employment law experts Christie Hall and Jennifer Mills advise, “it will need to meet with the employee to discuss the issue, allow the employee to provide relevant medical information regarding their condition, its effects and prognosis and seek an independent medical assessment.”
“Prior to terminating the employee’s employment on grounds of incapacity, the employer would need to consider whether the situation was sufficiently serious to allow it to ‘call halt’ on the relationship and we note that this is a high threshold.”
Learn more about ‘Disciplining employees with mental health concerns’ at the HRD Employment Law Masterclass Auckland on 11 March. Book your tickets now.