If your employer mishandles your mental health issue you could be entitled to make a constructive dismissal claim. It may also lead to a claim for personal injury based on negligence, and/or a breach of the employer’s duty to provide a safe workplace and system of work.
Duties of Your Employer
Your employer should handle your mental health issue sensitively. This should include consulting you and carrying out a proper medical investigation, before any decision to dismiss you from work is taken.
The ACAS guide on discipline and grievances at work states that an employer should consider introducing measures to help employees, regardless of status or seniority, who are suffering from alcohol or drug abuse or from stress. Your employer should also consider whether it’s appropriate to treat the problem as a medical matter, rather than a disciplinary matter.
Your mental health problem may amount to a disability, and if so you employer must consider it’s duties under the Equality Act 2010. Your problem may manifest itself initially as one of misconduct or poor performance. This was relevant in the case of Halton BC v Hollett EAT 559/87 where an employee was found to have been unfairly dismissed because the employer treated his situation as a misconduct issue, when his behaviour was, in fact, partly caused by him taking the wrong dose of medication. In addition, the employer did not allow later medical evidence to be considered by the panel.
Your employer should seek to identify the nature of the mental health problem at an early stage – for example, whether it’s a serious psychiatric condition requiring strong anti-psychotic medication, or whether it’s a more generalised depression or an anxiety-type condition. Your employer should also establish whether you have been hospitalised at any stage as this will give an indication of the seriousness of the condition.
If you have a mental health problem you may find it very difficult to articulate your symptoms. Medical investigation is therefore particularly important in a mental health situation and it will often be necessary for your employer to obtain a report from your GP or Consultant. There may also be other professionals helping you, such as a counsellor, whom you may wish your employer to consult for information.
If you refuse to consent to a medical report it may be fair for your employer to dismiss you based on the information the employer has available.
Making Reasonable Adjustments
If you have a mental health problem and are suffering from either long-term absence or persistent short-term absence, your employer should consider adjusting its process to take account of the fact that it’s dealing with a mental health problem and not a physical one. Similarly, if the problem is poor performance then the procedure used by your employer to improve performance may need to be adapted.
Your employer should recognise that if you have a mental health problem then you may not open or answer letters or pick up the phone. Your employer should also appreciate that you may take much longer to respond if information is requested and you may need prompting and reminding to do things. If your employer is following a performance monitoring procedure with a series of warnings/cautions and opportunities to improve, it may consider allowing you a little longer to achieve the required standard.
You and your employer may find it helpful for a trusted friend or family member to help you. Your employer may ask your permission to set up contact with that friend/family member if you are absent.
If your mental health condition is serious and long-term it may amount to a disability. If so your employer should consider reasonable adjustments. If you are able to come back to work after a long absence, or you are absent intermittently, reasonable adjustments for your mental health condition might include:
- Reducing hours – for example, if your ability to concentrate for long periods is affected
- Changing your working hours
- Reducing the workload (particularly if there’s a suggestion that overwork has caused or contributed to the problem)
- Allocating you a different type of work
- Moving you to work with different colleagues
Making reasonable adjustments was of importance in the case of Croft Vets (1) Joyce (2) Ness (3) v Butcher UKEAT/0430/12/LA, UKEAT/0562/12/LA. In this case, the Employment Appeal Tribunal held that where the condition was largely caused by work, then the funding of specific private psychiatric treatment and counselling (as recommended by an expert) to enable an employee to return to work and cope with work-related difficulties does amount to a reasonable adjustment.
If you are facing dismissal from work because of mental health issues, you should speak to one of our Employment Law Solicitors. We can assess your case and advise whether you are being unfairly discriminated against.