Mental health affecting employee performance tricky to address

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It has been estimated that one in six New Zealanders will be diagnosed with a common mental illness at some time in their lives. The World Health Organisation has predicted that mental health issues will be the leading cause of disability and absence in the workplace by 2030, if not proactively addressed.

Clearly, with these statistics, an employer is increasingly likely to encounter mental health issues in the workplace, and it can be one of the trickier problems to deal with.

The smaller the business, the greater the impact an employee with some form of mental illness is likely to have, if it is left unmanaged or unaddressed. Mental illness can often lead to a decrease in employee productivity, an increase in absenteeism, and where moody, aggressive and/or unpredictable behaviour results, the impact on other employees’ mental wellbeing can also be significant.

So, where an employer suspects an employee’s conduct is potentially the result of mental illness, what can be done to manage this situation?

In general, an employee’s private life is exactly that—private. But when their private life or health start to impact on their ability to perform the job they are employed to do, then it becomes an employment issue. Let’s stop paying just lip service to treating mental illness like any other illness, and acknowledge that it actually is.

A good employer would not sit by doing nothing as they watch an ageing employee increasingly struggle to lift 20 kilogram boxes all day, and would take some proactive steps such as seeking medical information on what the employee should/should not be doing, considering a reallocation of duties to something less physical or perhaps investing in some tool or machine that would decrease the need for lifting. A bad employer needing a stick before taking actions they are obliged by law to take, will find plenty in the Health and Safety at Work Act 2015 and the Employment Relations Act 2000.

Likewise, a good employer would not simply sit by doing nothing as they watch an employee’s mental health steadily decline, placing that employee and others in the workplace at risk of increased stress and potentially, even physical or verbal aggression.

An employer should open an informal conversation with an employee they suspect of suffering mental illness, in a private, quiet meeting, and ask whether the employee is all right and whether there is anything the employer can do to help support the employee. An employee cannot be compelled to disclose such information, if that is their choice, but if done with empathy and tact, many in fact will.

An employer should also outline the conduct they have witnessed (such has high absenteeism or unusual moodiness) and let the employee know that it is negatively affecting the business, and that the employer is raising the issue not only out of concern for the individual employee, but also for those working alongside them.

An employer should first find out whether the cause of the problem might be work related, such as excessive workload, a relationship problem with another employee or a feeling of isolation from other colleagues. Based on any information the employee discloses, steps can then be taken to see if the source of the problem can be mitigated, such as a redistribution of duties or a change in team structure.

Unfortunately, denial of the problem and a feeling that everyone else at fault, not them, is not uncommon in mental illness. Where the employee does not consider their conduct or performance is an issue, it is for the employer to decide whether expected standards are being met or not, and whether more formal action may be needed.

The first step should be to formally advise the employee, in writing, of the employer’s concerns, and ask the employee to agree to a medical examination, at the employer’s expense. The employee should be asked to provide a copy of the letter to his/her treatment provider or providers, so they can fully understand the employer’s concerns.

Due to privacy issues, a medical practitioner will not be able to discuss any findings or diagnosis with the employer, unless the employee has provided written authorisation for the employer to discuss the employee’s health status with their treatment provider.

Where an employee simply refuses to attend  a medical examination or provide authorisation to the employer to discuss issues with their treatment provider, the employee needs to be informed that the employer will have no other option but to proceed on the information they currently hold, namely, that the employee’s performance/conduct is not meeting expectations, and a performance improvement programme or other disciplinary action may ensue.

Where the employee does co-operate and an underlying mental illness is discovered, the employer may seek information from the employee’s treatment provider as to what the employer can do to support the employee in the workplace,  agree to provide the employee with counselling sessions at a registered Employee Assistance Program at the employer’s expense and/or offer more flexible working arrangements while the employee is undergoing treatment.

The health and safety of all employees is the responsibility of the employer, and a good employer will be able to demonstrate that they have done everything possible to help an employee, before taking more drastic action that may only serve to compound the mental health issues an employee is suffering from.

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About Author

Erin Burke

Employment Lawyer and Director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375