Whilst mental health was previously something of a taboo, it is now one of the most topical subjects of today, particularly in relation to the world of work.
Those situations whereby mental health challenges affect a workplace can be incredibly difficult to navigate for both the employee and the employer, often with neither party quite knowing where to start, let alone where any solution might be found.
As an employer, it’s important to recognise and account for the fact that mental health and wellbeing is an important part of your employees’ life and the way in which you support and manage those with mental health challenges could hugely impact all areas of your business. This includes engagement, productivity, profitability, retention, customer satisfaction, and more.
Perhaps the question many employers might want to get to the bottom of, is “Can I dismiss someone with a mental health condition?”
The answer – like it or not – is that it’s just not so straightforward.
“A prompt and understanding service from start to finish”
“The whole process took a week from enquiry to completion. We are very satisfied with the result and won't hesitate in using MAD for any of our future HR needs.” Read the full review
Mental health and employment law
The Employment Rights Act 1996 lists one of the fair reasons for dismissal as Capability (Medical or performance-related) which can include Mental Health conditions.
However, the Equality Act 2010 offers additional protection to those with a Disability, which can also include Mental Health conditions.
Therefore, before you can consider dismissing someone due to the impact their mental health condition is having on the ability to carry out their role, there are a number of steps you as an employer need to have undertaken.
Failure to do so may result in huge amounts of time, money and damage to your reputation, so ensure you proceed with caution.
To coin a phrase, “communication is key”.
Ensure you speak with the individual to find out how things are for them, what do they need to help support them in their role?
What support do they have outside of work and are there any places where you could signpost them to for additional help?.
You are not expected to be an expert or to provide advice and guidance beyond where either of you are comfortable, however, opening up a dialogue helps you and your employee to understand the situation from both perspectives and begin working together to come up with solutions.
Reasonable adjustments can include altering work patterns to accommodate therapy appointments, providing quiet workspaces, changing supervisory methods such as providing written instead of oral and working from home or not working from home.
Whilst there is no definition of what constitutes reasonable, it is important to consider what is possible to support the individual, within the context of the organisation, the role, the individual’s requirements, and resources available.
As previously stated, you are not expected to have all of the answers, however you have a higher chance of reaching a successful conclusion by engaging specialists in the process.
Seek advice from experts such as:
- Occupational Health (OH) or a GP – they will be able to advise on the employees’ condition and what reasonable adjustments may be appropriate to support them in returning to and sustaining the return to their role and duties.
- Signpost to an Employee Assistance Programme (EAP) if you have one, or to an organisation like Health in Mind or other organisations that offer free support to employees suffering with a Mental Health condition, which is impacting them at work.
- Engage with a HR Consultant to help you navigate the process, minimizing the risk of a successful claim for discrimination.
Policy and Procedure
Ensure your policies and procedures are up to date and provide clear guidance on how to deal with issues such as absence, poor performance and issues of conduct.
Not only that, ensure your managers are trained in how to spot signs of poor mental health of their peers and team members and importantly how to manage these situations effectively.
Investigation and evidence is a key factor to consider.
In any dismissal relating to a health condition – be that mental health or physical – if there is demonstrable evidence of the impact of the employee’s capability on the business and other employees, this should be discussed with the employee and recorded.
There is a high risk of a claim of unfair dismissal if an employer is unable to demonstrate a fair process and investigation has been undertaken, including what they have done to support an employee in the workplace who is suffering from a mental health condition, the employer can be ordered to pay large sums by way of compensation.
Despite all best efforts and intentions, it is fair to conclude that in some cases, a dismissal may be the only option.
Even if support and reasonable adjustments have been made, employees with certain mental health conditions may not have the capability due to their ongoing condition to undertake the duties of their role.
So, yes, employees with poor mental health or any other type of disability may be dismissed from their role, however, this type of dismissal is not without significant risk to the employer.
Therefore, having clear policies and procedures in place, training your managers on how to manage such situations, engaging experts at the right stage of the process, considering/taking all possible reasonable adjustments to support an employee is paramount in the defence of any unfair dismissal claim.
Need more help?
Feel free to give one of our expert team members a call to help you navigate this potentially tricky situation
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact us.
There may be occasions where the articles contain links to external websites. We have no control over the nature, content and availability of those sites. The inclusion of such links does imply a recommendation or endorse the views expressed within them.