Juggling Mental Illness and Performance Management

Anna Ford

Dealing with an employee who is not performing to the standard required of someone in their position can be a complex situation, so when you throw into the mix knowledge that they may be suffering from a mental illness, an already difficult situation can become a whole new level of complicated!

As an employment lawyer, I would caution employers against simply ignoring this type of issue, as taking that approach can come back to bite you, and/or it could also see you lose a valuable employee unnecessarily.

By way of example, I recently assisted a client with a matter involving an employee who was disliked by his co-workers due to his behaviour towards them, which was generally described as aggressive, and at times even threatening.  Whilst this behaviour had gone on for some months, the employee had been with the company for years, and prior to recent months, the employer had faced no issues with regard to his behaviour.  Rather than taking the path of termination, my client opted to sit down with the employee to discuss whether he was ok.

This 'sit down' resulted in the employee disclosing that he had been dealing with a difficult family situation, and that he had been facing a significant struggle just to cope.  This lead to, among other things, the employee having some time off to rest, recover and seek professional help - and following his return to the workplace, no further issues were reported in relation to his behaviour.

The impact of mental illness on workplaces

In my experience, there is no doubt that workplaces are unable to escape the impact of mental illness.  Mental illness doesn't discriminate - it can affect people of any gender, age or nationality.  In fact, according to the Black Dog Institute:

Tackling a performance or behavioural issue when the relevant employee also has a mental illness

When tasked with addressing an employee's unsatisfactory behaviour within the workplace (or in connection to the workplace), if you are either aware that the employee has a mental illness, or you subsequently become aware - it is crucial to factor their illness into the strategy that you plan to adopt in dealing with the issue at hand.

When providing advice to clients faced with this type of scenario, I typically run through a series of questions in order to determine the best approach available, and to tackle the root of the issue:

The bottom line is that a person with a mental illness can, in most cases, be held accountable for their actions.  Similarly, their actions may be the basis for either the termination of their employment or another form of action (due to incapacity) - although not before; 

(a) you have the information to allow you to assess what impact, if any, the illness has had in causing (or contributing to) the performance or behavioural issue; and 

(b) you consider whether reasonable adjustments can be made to accommodate the employee's disability, and therefore assist them in the performance of their job.

Does the mental illness in itself give you grounds to implement disciplinary action or even terminate employment?

Absolutely not!  It is unlawful to discriminate against a person who has a disability, and a person who either is, or has been suffering from a mental illness (whether temporarily or permanently) is regarded as having a disability.

It is, however, lawful to consider disciplinary action or termination of employment if:

What is meant by 'inherent requirements'?

The inherent requirements of a position typically refer to the characteristics, or essential characteristics, of the particular role.  In other words, the core duties that must be performed, or the core skills that must be used to fulfil the role.

What is meant by 'reasonable adjustments'?

Adjustments refer to changes to a role or position which may allow the employee to perform their duties more effectively.  An adjustment is typically considered reasonable if it does not cause an employer any unjustifiable hardship.  Factors to consider here include:

Some examples of what might qualify as a reasonable adjustment include:

What are some of the initial steps you can take when dealing with a performance or behavioural issue, when the relevant employee also has a mental illness?

The key take home is this: as an employer, it is crucial to take care in crafting an action plan if you want to avoid the risk of a workers compensation, discrimination or adverse action claim.  This will take time, and there may not be a quick and simple solution.  

If you have an employee who is struggling with the components of their role and who appears to be suffering from a mental illness, please don't hesitate to reach out to Coleman Greig's Employment Law Team.  We can help guide you through the minefield of issues and risks, and act as a sounding board for your ideas on how to deal sensitively with the employee's situation: