Three Part Series: Frequently Asked Questions about Managing Mental Ill-Health in the Workplace, Part Three

Frequently Asked Questions about Managing Mental Ill-Health in the Workplace, Part Three (Final)

In the past two weeks, we’ve covered questions relating to the definition, responsibilities and obligations, risk factors and possible indicators of mental ill-health, actions and steps to support and communicate with team members and reasonable adjustment strategies to assist employees suffering from mental illness.

In the final installment of of this Three Part Series, iHR answers some more commonly asked questions about managing mental ill-health in the workplace.
1. Is it possible to performance manage an employee with a mental illness?

Yes, if they cannot meet the inherent requirements of the job even when a reasonable adjustment has been made to accommodate their needs.

2. What is an inherent job requirement?

It is important for employers to understand the term inherent requirement as it is critical to determine whether the employee who is in a period of un-wellness can meet the performance and safety requirements of the position, or whether they will need some form of workplace adjustment.

The term may be defined as:

• The ability to perform the tasks or functions which are a necessary part of the job.
• Productivity and quality requirements.
• The ability to work effectively in the team.
• The ability to work safely.
• The circumstances in which a job is to be performed – ‘inherent requirements’ in one set of circumstances may not apply in another, even if the duties are very similar.

3. What if the adjustments create an unjustifiable hardship for the Employer?

The requirement for employers to make adjustments to the workplace is measured against reasonableness. If the implementation of an adjustment would result in unjustifiable hardship to the company, the employer is not obliged to implement it. Relevant factors might include:
• Practicality;
• Complexity;
• Degree of disruption to the business or other people;
• Cost.
The assessment as to whether any of these factors will be considered unreasonable will vary according to the circumstances, with the size and nature of the business also being taken into account. In any event, however, the Disability Discrimination Act places the onus on the employer to establish that the adjustment is unreasonable.
4. Are there circumstances where it would be suitable to cease or suspend performance management?

You must cease performance management if:
• The employee becomes extremely distressed or is unable to attend.
• There is a significant risk of exacerbating the symptoms.
• Medical or psychological advice recommends the person is unfit for work.
• The employee makes an allegation of bullying and harassment and you need to seek independent advice.
• A risk situation is perceived and there is a need for a temporary situation while the situation is dealt with.

Performance management can be commenced or recommenced when:
• The symptoms are no longer a significant barrier to performance of duties.
• Medical or psychological advice recommends that the mental health condition should not impact on work duties.
• The employee begins to meet performance standards independently.
• The employee has breached the organisation’s Code of Conduct or relevant policies on more than one occasion.

5. What are the risks of terminating employment?

Even if the correct process is adhered to, or exceeded, and the organisation decides to terminate employment, employers should be aware that they can still be subject to a range of potential claims, including:
• Unfair dismissal;
• General protections provision for temporary absences (period of three months or less over a period of twelve months excluding periods of paid personal leave);
• General provisions for discrimination;
• Common law claim for breach of contract/policy.

You should seek advice from your Retail Performance Consultant before considering any termination, in particular in this type of situation.