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:

• 1 in 6 Australian workers experience mental illness each year (so there is more than a small chance that you are dealing with someone with a mental illness, regardless of the employment situation);
• depression and anxiety are now the leading cause of long-term sickness absence in the developed world (both are also associated with ‘presenteeism’, where an employee remains at work despite their condition, resulting in a significant reduction in productivity); and finally
• poor mental health at work is estimated to cost the economy over $12 billion each year, including over $200 million worth of workers compensation claims.  

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:

• Is there a diagnosis?  Has the employee seen a doctor?
• Did you know about the condition prior to the issue arising?
• Is the employee doing something to manage their condition?
• Did you (or could you) put in place any measures, or provide any support to assist the employee in managing the condition as it affects their work?
  That is, did you/could you have made reasonable adjustments to accommodate the impact of the condition?
• Does the condition appear to have either caused, or been a contributing factor in the behaviour or performance issue?
• Do you need to obtain a medical opinion as a basis for making a decision?  Can you lawfully request the employee to attend a medical practice for assessment of their fitness to fulfil the requirements of the position?  What do you know that would make that a reasonable course of action?
• Do you need to consider engaging a third party (e.g. the employee’s treating doctor or psychologist, or a doctor engaged by you or a rehabilitation provider) to assist with the process?

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:

• the mental illness is in no way related to the performance issue or conduct issue; or 
• you have considered (and if appropriate) put in place reasonable adjustments to assist the employee, but the performance or conduct issue remains a concern; or
• the mental illness prohibits the employee from performing the inherent requirements of the job that they have been employed to perform, and in reaching that conclusion you have considered whether the employee could be provided with reasonable adjustments to help them do their job.

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:

• the benefit or detriment likely to arise for any person concerned;
• the effect of the disability of any person concerned;
• the financial circumstances of, and the estimated cost to, the employer; and 
• the employer’s access to financial and/or other assistance.

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

• flexible work arrangements (e.g. varying start and finish times);
• changing aspects of the position or tasks associated with the role;
• changing the workplace or work area; and
• purchasing or modifying equipment.  

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?

• arrange a meeting with the relevant employee, letting them know in advance (in brief) the purpose of the meeting (e.g.  an overview of your concerns regarding their performance, or an overview of your concerns regarding their behaviour) and invite them to bring a suitable support person with them to the meeting;
• at the meeting: – set out your concerns surrounding their performance/behaviour in detail, making it clear exactly why the employee’s level of performance/behaviour cannot continue;- let them know that you are aware that they have a mental illness, or are concerned that they might have an illness;

  – assuming that they confirm the existence of a mental illness, let them know that you would like to discuss their views on how their illness is impacting their performance/behaviour;

  – let them know that you are willing to explore any potential (and reasonable) adjustments that could be made in order to help accommodate the impact of their mental illness, with the aim of them being able to meet the requirements of their position.

  Specifically invite the employee to make suggestions, or to consult their treating doctor about this, as their treating doctor may have suggestions that could be tabled for discussion.

  If the doctor is consulted, they will need to know what is required in the employee’s role;

  – make it clear that although their current behaviour/performance is not acceptable, you are willing to explore whether there are options available (including reasonable adjustments, if available) that will prevent the issue occurring in the future;

  – let them know that if the performance/behavioural issue cannot be resolved, then you may have no choice but to proceed down a more formalised performance management path.

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.