A few months ago one of our experienced retail store managers told us that he was having some mental health problems, including depression and anxiety, which sometimes made him angry, however he was receiving therapy and taking medication for his condition. Last week that employee got into an altercation with a customer who apparently made an unreasonable complaint in an unreasonable manner. The facts are still not entirely clear but there does seem to have been some ‘pushing and shoving’. We saw some poor quality CCTV and concluded that he was guilty of gross misconduct and summarily dismissed him. He is now saying in his appeal letter that this is unfair and disability discrimination.

Peter replies:

You should have realised his anxiety was an ongoing illness, and not gone ahead with a disciplinary procedure without first obtaining a proper medical opinion. It is likely that his health problems were continuing at the time of the incident. This should have been taken into account during the disciplinary hearing and probably beforehand, as part of an investigation.

Mental health is not a straightforward issue and mental health problems are very common. The Department of Health states that one in four of us will experience such health issues at some point in our lives. A CIPD report reveals that 37% of people with mental health issues are more likely to get into conflict with colleagues and 50% are potentially impatient with customers. Revealing a mental health issue can affect how people are treated in the future and there may be very real concerns about whether poor mental health will be seen as a weakness that impacts on promotion or other decisions.

I am not saying that mental health problems give an automatic ‘Get out of jail free card’ to excuse gross misconduct, but it has to have some relevance in the disciplinary process; so failing to consider it will be unfair and probably amount to disability discrimination. The issue is how an employer should respond when made aware that an employee has mental health issues.

If an employee says that their mental health issues mean that they are on a short fuse, the employer has a duty to work with the employee to assess what that means at work, and find a way of reducing the potential impact of this. Then monitor the situation until it was clear there is no longer a potential problem. In this case you really should have got a medical opinion on how it might have affected his behaviour and certainly prior to making a decision to dismiss. You appear to have failed to carry out as much investigation as was reasonable in the circumstances.

It is advisable for any organisation to get training in mental health issues for management and HR staff to help create a supportive environment, which encourages employees to be open about their mental health issues, and helping managers to deal with those issues appropriately to protect the employee, other employees, service users and productivity.

In addition to training key learnings should be:

  • Investigate thoroughly including obtaining an Occupational Health (OH) report
  • Approach the disciplinary decision with an open mind
  • Always take account of relevant mitigating factors.

In this case you should talk to the ex manager about delaying the appeal pending getting an OH Report, do not rely on his GP who will act solely as a patient advocate. When you have that report, convene an appeal hearing; review the facts thoroughly and reach your decision on a calm professional basis.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.