Fired for Mental Health Issues
Employee with mental health issues
What is required from an employer will depend on what the mental health issue or mental illness is. If the mental health issue is a psychological impairment that has a substantial and long-term adverse effect on the ability to do normal daily activities, this qualifies as a disability and you will have additional protection against dismissal because of your mental health condition and reasonable adjustments will need to be considered and implemented to minimise any disadvantage arising from that disability when doing their job. If you do suffer less favourable treatment because of your mental illness and this qualifies as a disability you may be able to make a disability discrimination claim.
If you suffer workplace stress due factors at work such as a toxic working environment, poor working conditions, overworking, micromanagement or being excluded, you may not suffer from a disability and so would not to be able to claim disability discrimination, but you may be able to claim breach of contract for an employer not fulfilling their duty of care towards you. Patron Law can assist with your mental health at work questions.
Employer – employee has mental health issues
It is possible to dismiss an employee with mental health issues if there are issues of capability and a full and fair procedure is followed. A mental health condition might range from stress, anxiety, depression to dementia, schizophrenia, bi-polar disorder or obsessive compulsive disorder. However, the employee must be given the opportunity to address any capability issues, with sufficient time to recover. If, on medical evidence it is unlikely that recovery will happen or not for a long time, it may be possible to fairly dismiss on grounds of capability. It may also be fair to dismiss an employee for ‘some other substantial reason’, if recurring or long term sickness absence is having a negative impact on your business.
If an employee is on sick leave before starting any capability procedure or making a decision to dismiss, this may mean waiting for them to be well enough to attend a meeting or, at the very least, provide a written response. You must also give the employee reasonable time to recover from their mental health condition, and conclude any course of treatment, before reaching any final decision on dismissal.
As an employer it is your duty to provide a safe and secure working environment and minimise risks to employee health, safety and welfare, including minimising workplace stress. This means ensuring there is not a heavy workload, excessively long hours, or a lack of supervision or support. If you fail in this duty, compensation can be claimed in the civil courts for personal injury.
If an employee has a mental illness which is long term and affects daily activities and qualifies as a disability, you will need to consider reasonable adjustments. You should ask employees what they think would assist and collect medical evidence from the employee’s GP or other medical professional and an independent occupational health assessment at your business’ cost may also be a worthwhile investment so that decisions you make are supported by medical evidence.
Reasonable adjustments might include things like changing hours or days of work, changing duties or physical workplace adaptations or additional equipment, although what’s ‘reasonable’ will all depend on the facts of each case. You will need to consider whether changes are viable for your business by looking at the cost of any adjustments, the practicalities involved, whether there are sufficient resources in your particular business to fund these adjustments, and whether the adjustments will be effective in overcoming or reducing the disadvantage. Where reasonable adjustments are made, a clear written record should be retained of these. Reasonable adjustments should be reviewed regularly to ensure that they remain effective.
If you have made reasonable adjustments and they are not working after a reasonable length of time, communicated to the employee in advance, then a capability procedure should be followed according to your business’ capability policy or following the ACAS Code of Practice on disciplinary and grievance procedures. Or a protected conversation to discuss a settlement agreement to settle potential discrimination or unfair dismissal claims might be appropriate to protect against future employment claims or reputational damage to your business.
If an employee does have a disability, any dismissal because of this could potentially be deemed by an Employment Tribunal as automatically unfair. A decision to dismiss due to mental health conditions could also amount to unlawful disability discrimination. Compensation for disability discrimination is uncapped in an Employment Tribunal. Patron law can help with questions about mental health issues in the workplace and supporting or dismissing employees on long term sickness absence or disabled employees.
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Key Contact:
Samantha Jolliffe
Partner