Employee Performance Issues and Mental Health

Posted in : Seamus Says - Employment Law Discussion on 1 February 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Okay. We have another question here, still on performance issues. “We have an employee whose role is primarily customer service-oriented that’s been displaying behavioural issues in the workplace along the lines of vocalising their frustrations about customers.” Who’s ever done that? “And displaying a rude attitude towards coworkers.” Never come across people like that either.

“This employee has been previously given a formal warning regarding their behaviour, for which a customer complaint was received. This behaviour is impacting on the team with morale and productivity affected. It’s generally known the employee may suffer from a form of mental illness.” Now that makes it much more difficult. “And take medication for it. He’s a longstanding employee with 12 years’ service. How should we handle it?”

So, I suppose the background here is similar. You’ve got somebody who can do the job, has difficulties at certain times, and it's made much more complex, Hannah, by the fact that this person has some kind of mental illness and is taking medication. Perhaps not all the time. We don’t know.

Hannah: There seems to be a lack of clarity. Is there definitely a mental illness here? What is the mental illness? Is the mental illness actually what’s affecting the employee from doing the work here or is there something else going on here? They’ve done formal warnings with this employee, but we don’t know if they’ve tried to gauge what’s going on in the background here. I think your first protocol would be to meet with the employee and just have a discussion with them and find out what’s going on, very similar to the question before.

Try and pinpoint what the reasons are. If the reasons are an illness that’s going on here, there is a greater risk here because you’ve got a potential disability discrimination going on if we treat this employee differently than we would any other employee, but I think if that is what’s behind it all, then we need to be looking to get medical evidence here to find out, “Are they in the right role? Is this the right role for them with the condition that they’re going through? Is there anything that we can do to facilitate the role that would make it easier for them?”

If they’re being aggressive, is there’s something else going on? Are customers reacting funny to them or something? What’s going on here to judge it? I think it’s just about detailing out and trying to figure out what is happening and what can be done for the employee to improve the situation for them.

Scott: A lot of it comes down to communication.

Hannah: Yeah, 100%.

Scott: Somebody that’s been there for a long time . . .

Seamus: 12 years.

Scott: . . .they’ve been doing the job for a fair chunk. Presumably, they’ve been good enough to do the job over that period. So, there may be something that’s happened. It may be the medication isn’t working so well anymore. Sometimes you find that when somebody does something wrong, you pose questions like, “What if you were the customer? How would you feel?”

At this stage, it’s probably not a disciplinary issue, although they’ve been down that route before. If you go down the route and it doesn’t work, inevitably if you keep going down that route, it’s going to end up with somebody losing their job, somebody with a mental health issue who presumably could claim for disability discrimination.

Hannah: 12 years’ service, it’s going to be a substantial one, potentially.

Scott: It could well be. Any other comments around this particular one, Seamus?

Seamus: The other thing would be from the disability aspect, maybe giving consideration to medical evidence. If you have, as Hannah said, had those informal discussions with the employee, you maybe ask the employee to attend with the GP and get a report.

If the employee has said, “There is problems here because of X, Y, and Z,” or because the employee can’t identify those problems themselves, which often happens in issues with these sorts of disabilities, you’re maybe looking at occupational health or alternatively, if you could get something from the GP at least to get a diagnosis to know what it is that you’re working for and what adjustments then you can make as a result of that. It’s a good thing to get the medical advice in that respect.

I think if you ignored the element of medical evidence and you proceed with a dismissal, that would be a concern for me. A tribunal judge would be asking, “Why haven’t you investigated that? You have an employee here with 12 years’ service. You don’t get to 12 years’ service if you’re a disaster employee. You had to have been making the mark up to that point.” Again, I’d be looking at some element in respect of trying to identify what is going on here.

Q: If a person has mental health issues that are impacting on work and there is no option to redeploy, can you dismiss?

Scott: We have one last question and then we’re going to have to stop. “If the person has mental health issues that are impacting on work and there is no option to redeploy, can you dismiss?” Eventually, the answer is yes, isn’t it?

Seamus: Potentially, yes. But I think you have to go through the process, first of all. I think if you did an immediate dismissal on the basis of an event happening one day and enough was enough, you might end up with problems here, but ultimately, that’s where you’d be heading. You’d want to make sure that your paper trail is very good.


This article is correct at 01/02/2019

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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