Mental illness discrimination at work

Unemployment is a recognised risk factor for mental health problems, while returning to, or getting work is protective.

A negative working environment may lead to physical and mental health problems, harmful use of substances or alcohol, absenteeism and lost productivity.

Workplaces that promote mental health and support people with mental disorders are more likely to reduce absenteeism, increase productivity and benefit from associated economic gains.

Today, employers are becoming more aware of the value of having ‘mental health first aiders’ at the workplace.

However, information about mental health is not readily available hence in many instances, employers and colleagues may have no idea what is wrong while an employer suffers in silence.

Therefore, it is important to talk to the employer where one has been diagnosed with a mental health problem.

This way the employer can work with the affected employee to ensure that they are not disadvantaged at work and also put in place reasonable adjustments if appropriate.

An employee who feels discriminated against at work because of a mental health issue, should first make a complaint to the supervisor or any other appropriate representative.

Should they fail to take action, you can register a formal grievance with the HR or by following any other process available at the workplace.

If you are still not satisfied with the outcome, you may need to seek legal advice on lodging a discrimination claim in the Employment and Labour Relations Court.

It is possible lawfully to terminate an employee with mental illness.

However, there are a number of matters that need to be considered by an employer before deciding to terminate an employee in these circumstances.

An overriding consideration will be to tread carefully and patiently in dealing with such an issue, and to take sound medical and other advice along the way.

This way, an employer is able to avoid the risk of having to deal with discrimination law suits.

UNFAIR DISMISSAL

Workplace discrimination arises where an employee is treated less favourably or put at a disadvantage in violation of the protected grounds under Section 5 of the Employment Act 2007.

An issue may arise in the context where an employee has been absent from work or is unable to perform his or her role for prolonged periods of time due to a mental illness and the employer is aware that the employee is having this challenge.

If an employee with a mental illness is discriminated against on grounds of his mental health, there is a high chance that the employer would be sued.

However, an employer will be in a better position to defend an unfair dismissal or discrimination claims, if it can be established that the employee cannot reasonably perform the inherent requirements of his role; and, reasonable adjustments provided by the employer are not sufficient to enable the employee to carry out the inherent requirements of the role, or the adjustments that could be made would constitute an unjustifiable hardship on the employer.

Reasonable adjustments are changes to the working environment or methods intended to alleviate or remove any disadvantage that an employee might otherwise suffer due a disability.

PERFORMANCE APPRAISAL

A reasonable adjustment depends on the condition an employee is suffering from.

For example, an employer might offer more flexible working hours or the opportunity to work from home or even make physical changes to the workplace.

It is important for the employer in defending such claims to be able to establish that the misconduct or performance issues in question were not linked to the employee's mental illness or if they were, that appropriate consideration was given to that fact.

Lastly, employers have a duty to accommodate up to the point of “undue hardship.”

The bar is set quite high for an employer to be able to claim undue hardship and consequently, to discourage employers from imposing negative consequences on employees who seek to assert their rights as people with disabilities.

The writer is associate, Simiyu Wekesa Advocates.