As with all mental health related issues, it's incumbent on employers to tread carefully
As more and more employers adopt a remote or flexible working policy, we’re spending less face-to-face time with our teams. And while technology has helped catalyse overnight digitization, it’s also led to a disconnect in performance management – especially when it comes to identify and helping employees suffering with poor mental health.
When it comes to mental health concerns, employers have a duty to inquire – even if an employee isn’t forthcoming in revealing their issue.
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“The main thing is to be aware of mental health and disability issues as and when they arise,” says Evan Oikawa, associate lawyer at Osuji & Smith. “It’s important to be aware that even if an employee doesn't expressly say that they need accommodation, or even if they don't say that they have a disability, there's a number of cases which suggest that employers may have a duty to inquire.
“If the circumstances suggest there may be a mental health issue, some tribunals have said that employers have a duty to ask questions to find out if there’s some underlying performance issues. That’s one of the key things to keep in mind - even if the employee doesn't voice that they have an issue, there still may be circumstances where courts or tribunals may expect an employer to take steps to ask questions. And if employers fail to do that, then they may be exposed to legal risk.”
As with all mental health related issues, it’s incumbent on employers to tread carefully. You cannot ask an employee for an outright diagnosis, nor should you ask questions that could be deemed “intrusive”. And, above all, don’t’ make any dangerous assumptions.
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“Take this example,” says Oikawa. “You see an employee sleeping in his truck at work, maybe he’s stumbling around and it looks like he’s drunk. As an employer, you may be inclined to look at that as a disciplinary issue and escalate to a performance management review. However, in reality that employee is suffering with a mental illness, maybe alcoholism, or even has a disability such as diabetes. If that’s the case, there’s an expectation on the employer to be sensitive to the situation and ask whether the employee’s behaviour is down to something else. When an employer does that, they're going a long way in protecting themselves from potential claims related to mental health or disabilities.”
In remote work, the issue is only further complicated. When an employee is working remotely, the employer may not have a good idea of what that work environment looks like. You may not know exactly how or if an employee is coping. As such, it’s important to keep in touch.
“It’s important to have regular meetings,” says Oikawa. “When an employee is away from the physical office, it’s easy to let these one-on-one chats slide. However, open communication and regular check ins are critical in assessing individuals mental state – and recognizing if or when you have to start asking some questions.”
It all comes down to knowing your people and their behaviours. As HR leaders, we often have to ask the difficult questions – even if it makes us uncomfortable. The duty to inquire is clear – closing your eyes to issues isn’t a viable excuse.
“The case law on the duty to inquire is clear,” says Jonathan Borrelli, employment lawyer at Keyser Mason Ball. “The legal obligation arises if it’s obvious to an employer that an employee really needs accommodation – even if they didn’t ask. Where there is evidence that the employer simply ignored their legal duty to inquire and rushed to judgement, it could be seen as failing in the accommodation process leading to discrimination. As such, failing in the duty to inquire could lead to liability on the employer for damages for wrongful dismissal and human rights.”