Managing mental health and fair employment process

27 Feb 2019
Author: Andrea Twaddle
 
The prevalence of mental health issues in society, and the need to support those who live with mental health issues, are not issues that stand outside the workplace. It is essential that employers provide a supportive work environment for employees who have mental health concerns, and follow fair and reasonable process, particularly when there is a need to provide genuine performance feedback.

In FGH v RST, the Employment Court provided guidance on how an employer should manage performance alongside health and safety obligations, where an employee has a known mental health condition.

Employers have a statutory obligation to take all reasonably practicable steps to prevent harm to their employees. An employer’s failure to address concerns or instances of undue stress can give rise to a personal grievance under the Employment Relations Act 2000 (the Act) on the basis that the employee was disadvantaged because of the employer’s failure to provide a safe workplace. An employee can also make a complaint to WorkSafe New Zealand under the Health and Safety at Work Act 2015.

In FGH v RST, the employee was a public servant who worked for a government organisation. Over time, performance concerns arose. Early in the performance management process, the employee advised her employer that she had an attention-deficient disorder (ADD) and an anxiety disorder. During the performance management process, this affected the employee to the point that she was unfit for work for a period of weeks.

The employer put in place additional support to accommodate the employee’s needs during the performance management process, including EAP assistance, time off to attend the gym, moving her desk and support from the organisation’s business coaches.

The employer argued that it had taken all reasonable and practicable steps in relation to its employee’s anxiety around the performance management process itself, and the impact of her ADD on her work performance. In relation to the performance management process it had taken a number of steps, including extending the timeframe it required for responding to steps in the process, providing discussion points ahead of meetings, and postponing and reprioritising meetings to suit the employee’s needs.

Despite accepting that the employer was genuine in believing it was providing a safe workplace and balancing any stress caused by the performance management process, the Court held that the measures were not enough to discharge the employer’s obligations.


Further, the Court held that the employee’s anxiety had worsened through the process. The employer had incorrectly interpreted her behaviour and inability to cope with the performance management process as her opposition to being performance managed, when her behaviours (such as absenteeism and outbursts) were symptoms of the mental health conditions which were known to the employer. The Court held that a fair and reasonable employer would have requested further medical information and assisted the employee in obtaining this, not simply expected the employee to provide medical evidence.

The judgment makes clear that an employer’s first focus in these circumstances should be on understanding the employee’s mental health issue(s), before proceeding with a standard performance management process and managing the stress that is a natural consequence of the process.

Where mental health issues are known, or suspected, employers should try to understand the issue, which may include requesting medical information and an assessment as to the employee’s fitness to perform the required duties. An employer’s support of an employee’s mental health and wellbeing, may resolve or assist in preventing performance issues arising, continuing, or escalating.

It is clear that employers should take proactive steps in these circumstances, and there are high expectations on employers imposed by the Health and Safety at Work Act.

It is illegal to discriminate against an employee for a mental health condition, and it is imperative that employers treat any employee who has underlying mental health condition fairly. Where an employment process itself has the potential to cause harm to an employee, especially where mental health issues are identified, employers must manage risks to maintain a safe working environment. Clear and ongoing communication with an employee are essential. This may include seeking further information to better understand reasons for a perceived change in behaviour or lack of performance. This will enable considered, well informed decisions to be made. Communicating well, and working together should always be the focus for an employer in these circumstances.

 
 
 
Managing mental health and fair employment process
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz