Mental Health at Work: can I be fired for not complying with a prescribed course of medication?

There is a mental health crisis both in the NHS and also in the workplace.

Employers need to constantly strike a balance between helping their employees manage stress and their mental health whilst allowing them to perform their challenging job properly without too much disruption.

However, new stressors are imposed on the workforce in today’s world as well as there being a heightened understanding of various mental health conditions arising from the internet and social media. People are more susceptible/more vulnerable to developing conditions such as depression and anxiety which, if left untreated, could become chronic and adversely impact a person’s ability to do their job. For the employer the biggest headache (if not addressed early enough) is long-term sickness absence from work.

Now that there is no longer a need for conditions to be recognised within the World Health Organisation classification, it is much easier to establish that someone is disabled for the purposes of the Equality Act, especially mental health conditions. GPs are only too ready to sign someone off for stress and/or anxiety and/or depression, even though they are unlikely to be experts in analysing this. They have to take the patient’s word for it and this could be based on some spurious research on the internet.

Regrettably, some employees might also be using this as a convenient and difficult to detect reason for being off work.  If the employer considers that there is a risk an employee might be disabled, they would have to take care not to jump to assumptions on the person’s conditions and also to make reasonable adjustments to help that person return to work.

Assume that this same employee has been prescribed a course of medication to help with their condition and mean that they can return to work but, for one reason or another, the employee ceases to take that medication, leading to a significant drop in job performance.

Would this enable the employer to dismiss the employee fairly? Potentially, but it depends on the facts, and also that a fair dismissal procedure is  followed. If someone is potentially disabled, even if this has not been confirmed for certain, employers must tread carefully to ensure they do not expose themselves to a discrimination claim or unfair dismissal claim (if the employee has two years’ continuous service).

Capability

An employee can be fairly dismissed on this ground if they have serious mental health issues which make it impossible to do their job properly but great care would need to be taken.  Up to date medical information would need to be obtained and the employee consulted about alternatives short of dismissal.

Some other substantial reason (SOSR)

It may also be fair potentially to dismiss an employee for some other substantial reason, if the recurring illness might have a negative long term impact on the employer’s business and colleagues alike.  However, clear evidence would need to be found to support this and again alternatives considered short of dismissal to avoid allegations of discrimination.

Misconduct

If an employee chooses to not comply with their  prescription (which has formed the basis of their return to work) of their own volition and has continually been insubordinate or done something like leak confidential information or personal data into the public domain, then it may be fair to discipline them for misconduct.

Gross misconduct

Remember, employers have duty to ensure the safety of all their employees, so would an employer have the right to summarily dismiss an employee if their refusal to follow a prescribed course of medication might lead to their causing  physical and/or verbal harm against another employee?

The nature of gross misconduct implies that there is a degree of culpability on the employee’s part (i.e., they have to have the intention to commit the act of gross misconduct) which may be hard to ascertain when dealing with a mentally unwell employee who was not of sound mind at the time of the incident.  Whilst this route should not be ruled out if there has been harm caused to another colleague whether mental or physical.  However, the evidence would need to be pretty clearcut, preferably with a medical opinion obtained on the situation before taking this route.

What can employers do to assist?

Mental health at work is a complex topic fraught with many legal issues. Each individual is different in how they cope and also how much they may want to share information or not about their condition.  It may be best practice that an employer, in the first instance, discusses the employee’s situation in a safe, open, and non-judgmental environment and explore options to help them which may include but not be limited to:

Redeployment into a less demanding role;

Offer reduced working hours;

Flexible working; or

Job sharing.

The employer may appoint mental health champions who are offered training perhaps by an external provider, as well as developing a positive professional culture toward advocating mental health awareness.

If you have require SMB’s services in navigating this area of law, please get in touch at joe.hennessy@smb.london