How to Manage Misconduct Arising from Mental Illness

How to Manage Misconduct Arising from Mental Illness

  • Date: Tuesday 22nd May 2018
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We have all seen the sustained focus over the last 12 months on the need for employers to provide greater support and understanding for employees with a mental illness. This is enforced by a recent finding by the Mental Health Foundation that one in six people experience such health issues inside the workplace. 

But how should you respond when an employee claims that an incident of misconduct at work was the result of a mental health issue? 

Preventative Steps to Consider

1. Implement a Mindfulness, Wellbeing or Mental Health Policy to provide a framework for dealing with mental health in the work place. 

2. Provide managers with awareness training in the impact that deteriorating mental health can have on behaviour. 

3. Focus managers and supervisors on preventative and supportive measures to put in place before problems arise.

4. Make reasonable adjustments (both temporary and permanent) that enable the employee to continue in their role.

5.  Be aware of discriminating against an employee by treating them unfavourably “because of something arising in consequence of their disability.”  For example, if at a disciplinary hearing for potential gross misconduct an employee discloses a mental health condition, the employer should delay a decision to dismiss until they have obtained an occupational health report.  If not, the decision to dismiss could be deemed as discrimination arising from disability.

Should misconduct arise and the employee claims the behaviour was due to their disability then the following actions should be taken:

  • Delay a disciplinary hearing until you receive medical advice to determine whether the employee is disabled under the statutory definition.
  • Make a referral to occupational health with detailed questions around the statutory definition of disability.  Not every person who has a mental illness will meet the legal definition.
  • Fully consider the content of the report from occupational health.  If it is clear from the report that the person is disabled and you had knowledge of the disability at the time of the incident then this will affect the sanction given at the disciplinary hearing.
  • Give serious consideration to issuing a lesser sanction, or depending on all the facts taking no action.
  • If you are considering dismissal, ensure you contact us at SSG for further advice.

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