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Disciplinary proceedings with employees suffering mental health issues

12 July 2019

A recent Employment Court decision (FGH v RST) raises important considerations for employers managing the performance of employees with known potential mental health issues. The Court indicated there may be significant consequences for employers who get it wrong.

Background

The employer was a government agency with an employee whose performance fluctuated from poor to satisfactory. As often happens, the employer proposed implementing Performance Improvement Plans (PIPs). During the process, the employee told her manager she was suffering from mental health issues, including anxiety and attention deficit disorder. Despite being told of the issues, the employer continued with the PIPs.

Despite a long period of supervision and coaching, the employee’s performance did not improve to the level expected by her employer. She was given a written warning for poor performance. The employee went to her doctor and got a medical certificate which confirmed she couldn’t return to work because of a deterioration in her mental health, and that the deterioration had resulted from difficulties she was having with her manager and the performance management process.

The employee raised a personal grievance for unjustified disadvantage, alleging, among other things, that her employer had failed to provide a safe and healthy work environment. The Employment Relations Authority dismissed the personal grievance claim. The decision was challenged in the Employment Court. The Court upheld the challenge and found that the employer had breached their requirement to provide a safe and healthy work environment.

The Court held it should have been foreseeable that she would not improve through the performance management process, given her employer was aware of her mental health issues.  It also found the employer should have consulted with a medical expert to determine the likely consequences of further performance management processes. While the Court acknowledged workplace stress naturally exists and performance management processes are by their own nature stressful, it said care must still be taken when dealing with individuals who are prone to significant health risks if exposed to such stress.

The Court noted that the employer did not gather further medical information despite being aware of the employee’s mental health issues. This information would have let them make an informed decision on the true cause of her performance problems, being her underlying mental health issues. In this case a procedure which was intended to improve the employee’s performance had the opposite effect.

What should you do if you have an employee with mental health issues performing poorly?

This case highlights that care must be taken when considering disciplinary proceedings with an employee who is known to suffer from mental health issues. An employer should think about consulting with the employee and obtaining medical information to understand the extent to which the concerns may be a symptom of their condition.

In light of this information, an employer should then consider how best the performance concerns can be managed, to try and support an employee to improve. This may include providing different ways to support the employee to deal with their mental health issues, rather than undertaking a stressful PIP process.

 

Jesse Lang is a Solicitor in the Commercial Disputes & Employment Team at Norris Ward McKinnon. You can contact Jesse at jesse.lang@nwm.co.nz