Throughout February 2016 the BBC dedicated two weeks of programming to exploring the subject of mental health and the nations understanding of the once taboo subject. Whilst it is clear that great advances have been made in medical and social understanding of the issue, employers still receive regular criticism for their handling of employees’ conditions in relation to mental health and other ‘hidden disabilities’. In this article we look at some of the most interesting cases covering this area which we hope will make employers sit up and take notice of the requirement for understanding what has been described as ‘one of the greatest issues of our time’.
Under the Equality Act 2010 (the Act), employees are protected from suffering discrimination at the hands of their employer because of physical or mental impairment which affects their day to day activities and which has a substantial long term effect on that employee. Should the employee satisfy the above tests, an employer is expected, amongst other requirements, to make reasonable adjustments to the workplace and to assist the employee in carrying out their job.
Employers are also under a statutory obligation to, so far as is reasonably practicable, look after the health, safety and welfare of all of their employees. Failure of the employer to adhere to such regulations could exasperate an employee’s symptoms and breach their duty of care towards that employee.
A 2015 report published by the Chartered Institute of Personnel and Development found that stress and mental ill-health were amongst the most common causes of long term absence in the workplace with two fifths of businesses showing a year on year increase in stress related absence. These figures supported earlier HSE statistics showing 440,000 cases of stress, anxiety and depression in the 2014/2015 year.
A case on stress/anxiety/depression - Dr E Michalak v Mid Yorkshire NHS Trust:
Normally employers have to deal with the mental illness of employees caused by factors outside of their control. This is a case where an employer looks to have caused or significantly added to a mental illness by its actions. The financial consequences were significant for the NHS Trust involved.
During Dr Michalak’s employment, she was subject to race and sex discrimination and subsequently dismissed for gross misconduct. The employer’s conduct leading up to the dismissal led to Dr Michalak suffering from insomnia, nightmares and “chronic and disabling psychosomatic symptoms”. At an Employment Tribunal hearing Dr Michalak was awarded compensation totalling £4.4m for her treatment at the hands of her employer and the loss of earnings resulting from the dismissal.
The compensation in this case is reflective of Dr Michalak’s high wages, but also includes a significant sum for injury to feelings caused by the actions of her employer. The Tribunal criticised the NHS Trust for a “concerted campaign” to terminate Dr Michalak’s employment which began during her maternity leave. In addition, criticism was aimed at the “bogus” disciplinary procedure used which saw Dr Michalak suspended for 16 months before her disciplinary hearing was convened. Unfortunately due to the treatment at the hands of her employer, Dr Michalak, suffered an ‘enduring personality change’ to the extent that her husband had to give up his job to care for her.
Learning Difficulties including Dyslexia
Dyslexia and all other learning difficulties such as autism are covered by the Act. Recent estimates identify 10% of the British public as dyslexic. It is not clear however just how many more are suffering in silence, perhaps afraid to tell their employer for fear of being unfairly judged or passed over for promotion.
A case on Dyslexia - Ms Kumulchew v Starbucks 2015:
Whilst at the time of writing this article the Employment Tribunal judgment was not publicly available, the media have recently reported on the case of Ms Kumulchew. She was accused by her employer, Starbucks, of falsifying work documents. Following an investigation, Ms Kumulchew was demoted from her role of supervisor.
As part of her supervisor job role, she was required to take temperature readings from fridges and water which she then entered into a duty roster. As a result of her known dyslexia diagnosis, Ms Kumulchew would on occasions insert the wrong details in the roster which she would then on occasions correct. Her actions in filling in the roster incorrectly lead to the company accusing Ms Kumulchew of falsifying documents.
Starbucks disciplined Ms Kumulchew for falsifying documents. At no stage during the disciplinary investigations was Ms Kumulchew’s dyslexia taken into account. She was victimised and demoted owing to her actions. Ms Kumulchew was subsequently successful in an employment tribunal claim for disability discrimination and will be awarded financial compensation at a future hearing.
Starbucks should have investigated the reason for Ms Kumulchew changing the work documents as part of the disciplinary process. If they had they would likely have found out the reason for the changes which was Ms Kumulchew’s dyslexia and taken different action.
Whilst all of the above conditions are covered by the Act, it is important to remember that a number of conditions are not covered by it. In particular addictions to alcohol, nicotine or any other substance are specifically excluded from protection under the Act.
Before drawing a line under these conditions however, it is important to analyse all of the facts of a specific case as issues connected with an addiction may fall under the Act. The guidance accompanying the Act gives an example of liver disease resulting from alcohol dependency. As this is an additional condition, albeit resulting from the addiction, it may count as a disability and therefore be protected under the Act.
A case on addiction - Power v Panasonic 2003:
In this case, the Employment Appeal Tribunal held that depression caused by alcohol abuse was not prevented from being a disability merely because addiction to alcohol is expressly excluded from being an impairment under the Act.
Further examples of the Power judgment have seen employees successfully claim disability in respect of clinical depression arising out of the consumption of unlawful drugs.
What does this mean for your business?
All employers, no matter what size, should be aware of the Act and the repercussions of discrimination within their business. Compensation for breach of the Act is potentially unlimited. A wrong decision could not only put a company in jeopardy financially, but tarnish a reputation that may have taken years to build. The Starbucks case is a good example of how an employer’s reputation may be tarnished.
All businesses should ensure that staff are both trained and understand the Act. Whilst the once common view that a disability can only be a physical issue has long since subsided, such beliefs are still evident in many workplaces as shown in the cases mentioned above.
Failure to train employees on the Act may mean that an employer is vicariously liable for the actions of its employees who breach the Act. Employers may also be liable for its discriminatory actions or the discriminatory actions of its staff in relation contract workers (such as agency staff or staff seconded in a corporate group structure) or for the discriminatory actions of its agents (such as consultants engaged by it).
Mental health is certainly an area where employers need to be proactive. As shown in the cases above, one of the greatest issues of our time is not going away any time soon.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.