How to Approach Terminating an Employee with Mental Health Issues?

Navigating the complexities of UK mental health employment law can feel like traversing a labyrinth. Yet, amidst this legal maze lies a crucial pathway toward supporting employee mental health in the workplace. In this article, we'll unravel the legal framework surrounding the mental health at work act, empowering HR professionals and people managers with the knowledge they need to foster a supportive environment. 

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Can I Terminate an Employee due to Their Mental Health Condition?

Terminating an employee solely due to their mental health condition is both legally and ethically problematic. Under the UK Equality Act 2010, and the US Americans with Disabilities Act (ADA), mental health conditions that have a substantial and long-term adverse effect on an individual's ability to perform daily activities are considered disabilities.

Consequently, dismissing an employee on this basis can lead to claims of discrimination and unfair dismissal. If termination is considered, it must be based on objective, performance-related issues rather than the mental health condition itself. This is one of the reasons why having a comprehensive workplace mental health policy in place is crucial to ensure these situations are handled appropriately.

Legal Consequences of Mental Health Dimissals

Terminating an employee due to mental health issues can expose employers to significant legal risks, including lawsuits for discrimination, wrongful termination, and failure to comply with legal requirements for mental health in the workplace.

• Discrimination Claims: If an employee’s mental health condition qualifies as a disability, failing to make reasonable adjustments could lead to claims of disability discrimination under the Equality Act 2010 or the ADA. Employers are required to offer accommodations, such as adjusted working hours or changes to duties, unless doing so would cause "undue hardship" to the company.
• Unfair Dismissal Claims: Employees with over two years of continuous service can file for unfair dismissal if the termination lacks a fair reason or proper procedure.
• If the employee’s mental health condition is not properly taken into account and termination occurs without following the legal protocols, employers could face a wrongful termination lawsuit.
• This is especially true if the employer fails to document their actions, such as efforts made to accommodate the employee or provide alternative solutions.

Best Practices for Handling Performance Issues Related to Mental Health

Addressing performance issues related to mental health requires sensitivity, legal awareness, workplace psychological safety, and proactive steps to support employees. Here are some best practices to manage such situations effectively:

• Early intervention is crucial in preventing long-term performance issues related to mental health. According to the National Institute for Health and Care Excellence (NICE), early identification and support can help prevent mental health conditions from becoming more severe, ultimately improving productivity and reducing absenteeism.
  • Employers should implement strategies for recognizing early signs of mental health struggles and provide access to Employee Assistance Programs (EAPs) and counseling.
• Consider conducting a structured conversation with the employee, using a performance review as an opportunity to explore whether mental health issues are at play. Frame it as an open, supportive discussion where the employee feels safe to disclose if personal factors or health conditions are impacting their work.
  • Before making any decisions, it’s crucial to assess the underlying factors contributing to performance issues. Mental health conditions can manifest in various ways—ranging from cognitive difficulties (e.g., poor concentration, memory problems) to emotional challenges (e.g., mood swings, anxiety).
• Transparent and empathetic communication is key to understanding and addressing performance issues linked to mental health. According to the American Psychological Association (APA), supportive workplace communication significantly improves employee well-being and job satisfaction.
  • Managers who engage in regular, empathetic discussions with employees about their needs and challenges help build trust and reduce stigma around mental health.
• Offering reasonable accommodations can significantly improve employees' ability to work despite mental health challenges. The Chartered Institute of Personnel and Development (CIPD) highlights that providing flexible working hours and adjusting workloads can support employees in managing their conditions effectively. Flexibility in work arrangements also helps reduce stress and burnout, promoting better long-term outcomes.
  • As part of your workplace mental health policy, create a mental health disclosure form that makes employees feel comfortable providing relevant details. This ensures that managers can better assess what adjustments may be needed without crossing any boundaries.
• Offer employees a return-to-work plan if they have been on extended leave due to mental health concerns.
  • This plan should include gradual reintegration, flexible hours, and a phased approach to workload management.

Please, it is important to keep detailed records of all discussions, assessments, and adjustments to demonstrate compliance with legal obligations.

If your organization has followed all the best practices—offered accommodations, provided support, and maintained open communication—but the employee’s performance continues to decline and their mental health does not seem to improve, it becomes a more complex situation. In these cases, employers need to navigate carefully, balancing legal obligations, ethical considerations, and the organization’s needs.

Are Employers Responsible for Employee Mental Health?

This is one of those questions that have a “Yes, but…” kind of answer. On one hand, it is expected that the employer provides a safe space (in both terms, physical and mental) for employees to perform their job. On the other hand, there are situations and experiences that can affect an employee's mental health but that are not caused by the workplace or task per se. So… What is the relationship between mental health and employment law?

• While UK law doesn't explicitly mandate employers to ensure the mental health of their employees, they are nevertheless bound by a duty of care. 
• This duty encompasses a broad spectrum of responsibilities, including providing a safe working environment, mitigating workplace stressors, and anti-discrimination protocols or workplace harassment that could impact mental health. We will explain further this concept in the following lines.
• Under the Equality Act 2010, if an employee's mental health condition qualifies as a "disability," the employer must make reasonable adjustments to the work environment. Failure to do so may constitute discrimination. 
• It's advisable for disability friendly employers to address mental health concerns by incorporating policies into staff handbooks or office manuals, distinct from employment contracts. 
• This mental health in the workplace policy should include: anti-discrimination protocols, specific mental health leave policies, occupational safety guidelines (on site and remote), disability rights, measures against workplace harassment, reasonable accommodations measures, and confidentiality protocols.

If you wonder "are employers required to give mental health days?" you can check a deeper explanation in our specialized blog.

What is an Employer's Duty of Care for Employees?

Mental health employers duty of care refers to the legal and ethical responsibility to ensure the health, safety, and well-being of employees in the workplace. This obligation includes creating a supportive environment that prioritizes physical and mental health, fostering trust, and maintaining compliance with employment laws.

Addressing mental health concerns is a critical aspect of fulfilling the employer duty of care mental health, especially given its growing importance in modern workplace dynamics.

Specific Responsibilities of Employers:

1. Conduct Regular Risk Assessments
   • Identify potential stressors, hazards, and risks in the workplace that could negatively impact employees’ mental health.
   • Implement strategies to mitigate these risks, such as reducing excessive workloads or creating quiet workspaces.
2. Provide Support Services
   • Offer Employee Assistance Programs (EAPs) and access to mental health professionals.
   • Establish clear pathways for employees to seek help confidentially without fear of stigma.
3. Foster an Inclusive Workplace Culture
   • Create a workplace culture that values diversity, equity, and inclusion, promoting psychological safety for all employees.
   • Encourage open discussions about mental health through awareness campaigns and regular check-ins.
4. Invest in Staff Training
   • Provide managers and team leaders with staff training on recognizing the signs of mental health challenges and responding effectively.
   • Equip employees with tools to foster resilience and build supportive relationships.
5. Facilitate a Supportive Return to Work
   • For employees returning after mental health-related absences, implement tailored plans that prioritize well-being.
   • Offer flexibility, such as phased returns or adjusted duties, to ease the transition and uphold employee rights.

Which Roles are Responsible for the Mental Health of Staff?

The question “are employers responsible for employee mental health?” takes to another interesting inquiry: who within your company should track and support your team’s mental health? In any organization, several key roles bear this responsibility, each contributing in unique ways to create a mentally healthy workplace.

HR (Human Resources):

HR professionals, employers and mental health initiatives play a vital role in creating a supportive environment. They play a central role in shaping organizational policies and practices related to employee well-being, including mental health. Therefore, their responsibilities often involve:        

• Developing and implementing mental health policies and programs such as employee assistance programs (EAPs) and mental health awareness training to promote mental well-being.
• Providing support and resources that work as a primary point of contact for employees seeking guidance or assistance with mental health issues, connecting them with appropriate resources and support networks.
• Ensuring compliance with the mental health employment law of their country and other legal obligations regarding mental health, including addressing reasonable accommodations and preventing discrimination.
• You can read more about the role of HR in the mental health of your team on our blog about this topic.    

Line Managers:

They are at the forefront of employee interaction, making their role critical in fostering a supportive and understanding work environment. Their responsibilities include:        

• Recognizing signs of distress since they are often the first to notice changes in employee behavior or performance that may indicate mental health concerns, allowing them to intervene early and provide necessary support.
• Providing guidance and flexibility in workload management, scheduling, and work arrangements to accommodate employees' mental health needs, reducing stress and promoting work-life balance.
• Encouraging open communication to create a safe space for employees to discuss mental health concerns without fear of stigma or reprisal.    
  

Occupational Health Professionals:

They bring specialized expertise to the table, focusing on the intersection of health and work. Their responsibilities typically include:         

• Conducting assessments and intervention that allow the company to understand and mitigate these factors to promote psychological well-being.
• Providing clinical support and guidance to employees experiencing mental health challenges, facilitating access to counseling, therapy, or other mental health services.
• Advising on accommodations for employees with mental health conditions, ensuring that workplace environments are conducive to their well-being and productivity.    

The Law and Regulations Around Mental Health at the Workplace in the UK

To help you better understand the mental health employment law in the UK, we have summarized the most important sections and what it means for your organization.

Disability Discrimination

Equality Act 2010

Overview: The Equality Act 2010 protects individuals from discrimination based on various characteristics, including disability. Mental health conditions are covered under the Act if they meet specific criteria.

• A mental health condition qualifies as a disability if it has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
• The condition must last, or be expected to last, at least 12 months.
• More specifically, it says that a mental health condition is considered a disability if it lasts or is expected to last at least 12 months. Conditions such as depression, anxiety disorders, bipolar disorder, and schizophrenia can be covered if they meet this criterion.
• The Act outlines several types of discrimination, including:
  • Direct Discrimination: Treating someone less favorably because of their disability.
  • Indirect Discrimination: Policies or practices that disadvantage people with disabilities.
  • Harassment: Creating a hostile or degrading environment.
  • Victimization: Penalizing someone for asserting their rights under the Act.

Disability Discrimination Act 1995

Overview: Before the Equality Act 2010, the Disability Discrimination Act 1995 (DDA) was the primary legislation protecting disabled individuals, including those with mental health issues, from discrimination.

• The DDA aimed to protect individuals with disabilities from discrimination in:
  • Employment
  • Education
  • Transport
  • Access to goods and services
• Mental health conditions were recognized as disabilities if they had a substantial and long-term impact on daily activities.
• The Act prohibited both direct and indirect discrimination.
• While the DDA has been largely superseded by the Equality Act 2010, its introduction marked a significant step forward in recognizing the rights of disabled individuals.

Protection Against Undue Stress

Management of Health and Safety at Work Regulations 1999

Overview: The Management of Health and Safety at Work Regulations 1999 (MHSWR) require employers to take proactive steps to ensure employee health and safety, including addressing work-related stress.

• Employers are required to conduct thorough risk assessments to identify potential hazards, including work-related stress, and take steps to prevent or control these risks.
• The regulations mandate monitoring the health of employees exposed to significant risks, such as stress, through:
  • Regular check-ins
  • Surveys
  • Access to occupational health services
• The MHSWR also requires employers to establish procedures for managing emergencies, including situations where stress levels become unmanageable.

The Working Time Regulations Act 1998

Overview: The Working Time Regulations Act 1998 (WTR) establishes limits on working hours and provides entitlements to safeguard employees from overwork and undue stress.

• The WTR caps the average working week at 48 hours, including overtime, to prevent excessive working hours that contribute to stress and burnout.
  • Employees can opt out of this limit, but employers must ensure this decision is voluntary and free from coercion.
• The Act imposes additional restrictions on night work, limiting it to an average of eight hours within any 24-hour period.

Employer Responsibility for Employee Well-being

Employer Duty of Care

Employers must conduct regular risk assessments to identify potential hazards and evaluate the risks associated with their work environment and practices. These assessments should cover physical risks, such as machinery and ergonomics, as well as psychological risks, including stress and workload.

Employers have a duty to provide support for employees experiencing mental health issues. This can include access to counseling services, mental health days, employee assistance programs (EAPs), and promoting a culture of openness and support around mental health issues.

For employees with disabilities or specific health needs, employers must make reasonable adjustments to their work environment or duties. This might include modifying workstations, adjusting schedules, or providing assistive technologies to ensure that all employees can perform their jobs effectively and comfortably.

Returning to Work After Mental Health Issues

Facilitating a smooth return to work for employees recovering from mental health issues requires a structured and compassionate approach. Employers play a crucial role in ensuring that returning employees feel supported and valued, which not only aids in their recovery but also reinforces a positive workplace culture.

Process for Facilitating a Smooth Return to Work:

1. Early and Open Communication
   • Maintain regular, confidential contact with the employee during their absence to express support and discuss potential adjustments upon their return. This demonstrates respect for their employee rights and fosters trust.
2. Conduct a Return-to-Work Interview
   • Schedule a meeting before the employee resumes duties to discuss their current health status, any concerns, and necessary accommodations. This interview serves as a platform to align expectations and address any apprehensions.
3. Develop a Personalized Support Plan
   • Collaborate with the employee to create a tailored plan that may include flexible working hours, modified duties, or gradual reintegration. This plan should be documented and reviewed regularly to ensure it meets the employee's evolving needs.
4. Provide Staff Training
   • Educate managers and colleagues on mental health awareness to promote empathy and understanding within the team. Training should cover recognizing signs of mental health issues and appropriate ways to offer support, thereby enhancing the overall workplace culture.
5. Ensure Compliance with Legal Obligations
   • Adhere to relevant legislation, such as the Equality Act 2010 in the UK, which mandates reasonable adjustments for employees with disabilities, including mental health conditions. This compliance underscores the organization's commitment to upholding mental health and work rights.

Role of Return-to-Work Interviews and Personalized Support Plans:

• Return-to-Work Interviews: These meetings are pivotal in assessing the employee's readiness to return and identifying any specific support they may require. They provide an opportunity to discuss concerns, set realistic goals, and agree on accommodations that facilitate a successful transition back to work.
• Personalized Support Plans: Tailored plans address the unique needs of the returning employee, outlining specific adjustments and support mechanisms. Regular reviews of these plans ensure they remain effective and responsive to any changes in the employee's condition or job role.