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Mental health in the workplace is something that many employers struggle with and continues to be a taboo subject. The recent case of Crisp v Iceland Foods Ltd ET/1604478/11 is a good example of how employers can get it very wrong and the implications of this, including the tribunal taking an unusual step under the Equality Act of making specific recommendations for staff training. James Hall, a solicitor at Charles Russell LLP, explains.
After working for Iceland in South Wales for 18 months, Ms Crisp became seriously ill with panic attacks, resulting in extended absence. Having previously worked for the company, Ms Crisp had been open in her interview about her condition and the fact that it was a disability.
During her absence, Ms Crisp sent in sick notes explaining her absence, but it later transpired that not all of these reached the correct manager. Additionally, the store had the wrong contact details for her, meaning any enquiries about her absence did not reach her. Having decided that Ms Crisp's absences were unauthorised and not having heard from her, the company invoked its disciplinary policy and dismissed her in her absence. She discovered this only when her pay stopped.
Ms Crisp used her right to appeal the decision but, on the basis of her disability, requested that her husband or mother could be her companion. Iceland chose to stand by its usual policy of allowing companions to be a colleague or union representative only. A voicemail was accidentally left with Ms Crisp of her area manager and HR contact discussing this point, with her manager making light of her condition and stating that she would "have a panic attack" when told her husband could not accompany her. The HR contact laughed during these comments. Ms Crisp's condition deteriorated significantly after receiving this voicemail as she thought she was seen as "a crazy mental person" by the company.
Ms Crisp's appeal went ahead, with her mother sitting outside the hearing room. Despite being reinstated and being offered the chance to move to another store, Ms Crisp resigned. The issue of the voicemail was raised by her, but not pursued by Iceland.
The tribunal found that Ms Crisp had been constructively dismissed because her treatment had breached the implied terms of trust and confidence. The voicemail constituted disability harassment and direct disability discrimination and there had further been a failure to make reasonable adjustments on the grounds of her disability in relation to the appeal hearing. She was awarded £7,000 for injury to feelings.
What makes this case stand out are the recommendations made by the tribunal. By 23 May 2013, Iceland must give disability discrimination training with a mental health focus to all HR staff who assist managers in disciplinary and grievance matters, as well as to all senior managers.
Avoiding discrimination claims:
It is important to remember that there is no cap on what an employee can recover for a discrimination claim. Had this claim been brought by a senior member of staff, the financial implications could have been far greater.
What is more significant is the public embarrassment of Iceland being told how to train its own staff and the cost of doing so. While there is no specific penalty for a failure to comply with such a recommend¬ation, any such failure is likely to have a significant impact on a tribunal's approach to any future discrimination claims.
To avoid being subject to such recommendations, it is vital that management staff are trained in all elements of discrimination. Mental health is one aspect where training is particularly important because it is easily misunderstood or misinterpreted.
Reasonable adjustments should also be fully considered. In many cases, flexible working can be key, for example altered hours or an element of working from home. The fact that an adjustment may be contrary to company policy is not an issue, although it must be "reasonable" in the context.
An open and productive dialogue should be enabled with any employee suffering from mental health issues. The nature of such issues means that it can be difficult for individuals to be open about the way it affects them.
It is beneficial to involve an occupational health worker early on, in addition to HR, to enable the best solution from both medical and business perspectives.
Impact of stigmatisation:
Stigmatisation in the workplace of those with mental health issues can have a devastating effect on the individual and a knock-on effect on those around them. As with all disabilities, many mental health sufferers simply want the opportunity to lead as normal a life as possible.
Work is a key aspect of this, but can also often be one of the most challenging. Unless a worker feels they can be honest about their condition, without fear of reprisals or ridicule, they will never be able to work to their best ability - a cost that is often overlooked by employers.
Mental health conditions in the workplace need not become major issues if they are properly handled. A failure to do this in an appropriate and sensitive way can have costly and embarrassing consequences for an employer. However, managers should not be expected to innately understand such conditions, meaning that proper training and input from occupational health workers is vital.
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We are able to send you the full Equality Act and talk through with you (at no obligation) the main imperatives of the Act. We have also attached a 28-page summary of the Act (see below) to highlight your responsibilities and the responsibilities of your employees.
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