There is an important difference between somebody who may be suffering with a period of stress in their life and an employee who has a long-standing mental health problem.
If an employee can show that they have mental health problem which “substantially affects” their “ability to carry out day to day activities”. This would mean that they are classed as disabled.
Disability is a protected characteristic and consequently any employer needs to ensure that the individual does not suffer discrimination. If the employee would not be classed as disabled, then there is no duty to make reasonable adjustments. Clearly though working sensitively to understand concerns and offer support is important.
Example:
A worker informs their employer that they are struggling with their mental health. The employee feels that working from home would help them.
The employer does not necessarily have to agree to this request but it needs to be carefully considered.
If it is identified that the employee suffers from a disability (WHAT IS A DISABILTY) then you would have to consider whether their request is a “reasonable adjustment”. In order to do this you would have to consider the extent to which the employee working from home would affect the business.
This would entirely depend upon the individual requirements of the business. It may be an unreasonable adjustment if there are clear reasons why the role cannot be undertaken at home. You would need to go through these reasons with the employee. In some instances, the employee may raise the request as a flexible working request in which case you must follow a more set procedure (WHAT IS A FLEXIBLE WORKING REQUEST)
It becomes problematic for an employer when an employee with mental health problems is not performing at work. Employers often feel reluctant to act about the poor performance due to sensitivities regarding the issues which the employee is facing. However, performance issues can and should still be addressed, the key is how you manage them.
An employer’s obligation is to make “reasonable” adjustments. That does not mean that an employer has to agree to any adjustment. In particular, an employer does not have to accept poor performance because an employer has mental health problems however, they must ensure that they deal with the issues fairly.
If it gets to the stage where an employer can no longer support the individual, then it may be necessary to commence a capability procedure. This may be because the employee is making mistakes or has a poor sickness record. If ultimately the employee is dismissed you would need to ensure that a fair procedure is followed {WHAT IS UNFAIR DISMISSAL}.
In cases in which an employee does not suffer from a disability and has less than two year’s service you may consider dismissing the individual. This is because you do not have the right to bring an unfair dismissal claim if you have less than two years’ service {CAN I DISMISS AN EMPLOYEE WITH UNDER 2 YEARS SERVICE}. Also, if the employee is not classed as disabled they would not be able to bring a discrimination claim.
The consideration of what is reasonable will depend upon the particular circumstances.
