Legal insight: mental illness in the workplace

Handling mental health issues that are affecting the workplace can be tricky for HR. Employment law specialists, Christie Hall and Jennifer Mills, provide legal guidance on the topic.

Legal insight: mental illness in the workplace
Handling employees with a mental illness can be one of the trickiest and most delicate issues an HR professional has to manage. It can also be a legal minefield.
So how best can HR manage an employee with a mental illness and if it becomes necessary to end the employee’s employment what are the options? Minter Ellison Rudd Watts employment law specialists Christie Hall and Jennifer Mills told HRM that the approach taken by HR will be, to some extent, influenced by the degree in which the employee is claiming the cause of their depressive illness is work-related, and the degree to which they acknowledge the change in their behaviour and willingness to take steps to improve their mental health.
They advise there are a number of options open to an employer:
  • Firstly, take a low-key approach. This will likely include talking to the employee, setting out the behaviours that have been noticed, advising that the company is concerned about the employee’s wellbeing and asking what the employer can do to help.
  • If the employer has an EAP programme bring it to the attention of the employee. The employer, depending on the employee’s reaction and its financial capacity can consider other employer funded counselling options.
  • Another option is to discuss a period of paid or unpaid leave with the employee.  In some circumstances it may be better for the business to know that the employee will be away for a particular period of time, rather than dealing with the uncertainty of an unreliable employee. For the employee, a period of time to focus on getting themselves better without any additional work-related issues may be of assistance. This step may not work in all circumstances, given that often employees who are depressed may want to continue working as it gives them a reason for getting up and a distraction from other issues.
  • With the employee’s agreement, a change in duties (temporary or permanent) could also be discussed. However, employers should be careful in raising this option so as not to give rise to any inference that they are taking disciplinary action or giving the employee a “be demoted or dismissed” option.
  • Obtaining an independent medical report (assessing the issues from an employment perspective) can be of assistance in helping the employer to assist the employee and also in assessing prognosis likely timeframes.
  • The employee may also be willing to talk through their options for exiting the business with grace and dignity and the employer may be willing to assist in this process.  An employer will have to be careful, however, in discussing any agreed exit, to ensure that its actions do not give rise to a claim of constructive dismissal. Any discussions along these lines would ideally be instigated by the employee and conducted on an agreed basis.  
If informal management of the situation does not assist the situation or the employee does not improve over a period of time, the employer can consider whether to approach it more formally.
Employers can address the issue either as a medical incapacity or in a performance management context.
“If the employer goes down a capacity track, 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,” Hall and Mills said. “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.” 
When it comes to approaching the issue from a performance management basis, Hall and Mills advise a caution as it is likely to be seen as an aggressive and insensitive approach.
Care would need to be taken in how the performance issues are phrased and in ensuring that the employer is providing sufficient support to the employee to assist them to improve their performance. 
“An employer needs to bear in mind that any action taken against an employee will be measured against the standard of what a fair and reasonable employer could have done in the circumstances.  In this regard, any action the employer takes will need to be both substantively justified and carried out in a procedurally fair manner,” they explained.
It is also important for an employer to take heed of the extent that the illness maybe be work related and whether there is anything that can be done to accommodate the employee. 
“As part of their health and safety obligations, employers are expected to take practicable steps to eliminate, isolate or minimise stress in the workplace that may have an effect on the health and safety of an employee. If an employer knows, or ought to have known, that an employee’s workload or other pressures in the workplace have reached unreasonable levels, they may be liable for a claim for disadvantage or breaching the Health and Safety in Employment Act 1992 if they fail to address the issue.”

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