Employers face a delicate balance when managing poor performance, especially when an employee’s mental health may be a factor. While addressing underperformance is essential, businesses must handle potential legal risks, particularly under the Equality Act 2010.
Mental health and disability discrimination
The Equality Act 2010 defines a mental health condition as a disability if it significantly impacts daily activities over the long term. Employers have a legal duty to make reasonable adjustments for employees with known disabilities, even without a formal diagnosis or disclosure.
For instance, an employee experiencing anxiety or feeling overwhelmed may exhibit declining performance. If the employer proceeds with disciplinary action without investigating the underlying cause, they could face a discrimination claim. Similarly, conduct issues like irritability or lateness might stem from an undisclosed mental health condition, requiring employers to act cautiously.
Reasonable adjustments and fair treatment
Employers should explore reasonable adjustments before making decisions with serious consequences. This could involve seeking occupational health advice, discussing adjustments with the employee, or reevaluating performance expectations. Adjustments might include altered working hours, reduced workloads, or support during formal meetings.
A one-size-fits-all approach to performance management may not ensure fairness. Employers must consider individual circumstances, especially when employees face challenges related to mental health. For example, rigid attendance policies could disadvantage those attending therapy sessions.
Training and policy implementation
Workplace wellbeing policies are ineffective if managers lack the training to recognize when to act on mental health concerns. Managers often become aware of employee struggles before HR, making their understanding of these issues key. Training should empower managers to identify situations requiring further investigation or adjustments.
Employees with mental health difficulties are not exempt from performance management. However, employers must demonstrate that their decisions are well-considered and compliant with legal obligations. Maintaining clear records of conversations, adjustments, and decision-making processes is vital for defending against potential discrimination claims.
As businesses focus on performance and attendance, they must also consider the underlying factors contributing to underperformance. HR professionals should ask whether there is relevant information to consider before determining next steps. Failing to address these factors could lead to legal consequences, even if disciplinary procedures are followed meticulously.
