No consideration of poor mental health in decision to dismiss
What an employer knew and when it knew it can be crucial when an employee challenges a decision to dismiss them.
Nursery worker Michelle was sacked for poor performance after three years’ service. She felt it was an unfair dismissal.
She would be the first to admit that she had struggled at times and was not at her best because of poor mental health following personal tragedy.
After being dismissed Michelle used the nursery’s disciplinary appeals process to challenge the decision.
The appeal included the employer’s failure to consider the inevitable impact her mental health had on her performance.
The nursery in explaining the decision to dismiss Michelle claimed that it was unaware of any concerns she had regarding her mental health.
Michelle had lost her mother quickly followed by her partner in unexpected and tragic circumstances about seven weeks later. It was about 18 months before her dismissal and she had struggled to come to terms with her loss.
It led to her taking a considerable amount of time off work during which she was diagnosed with depression.
When Michelle returned to work she believed the attitude of colleagues and management had changed towards her. She felt isolated and later had further time off with work-related stress and depression.
Upon her return after six weeks she was informed the nursery had concerns about her performance and had received complaints. Michelle was suspended from work.
She insisted that nothing formal had ever been raised or said to indicate she was doing a bad job. Michelle asked about the complaints and was told they had been made by colleagues.
Before Michelle was escorted from the premises she was given a letter inviting her to a disciplinary hearing the following morning.
The allegation was of poor performance and complaints from colleagues, which in summary said that Michelle was lazy and had a bad attitude towards her workmates and children.
The hearing was chaired by the manager of the privately-run nursery and she made the decision to dismiss Michelle.
For help with her appeal Michelle contacted the Castle Associates Employee Support Centre. She explained to our representative that she thought her depression was a significant factor in what occurred, and after reviewing the case he agreed.
Along with Michelle he gathered evidence to show what the nursery knew about her mental health struggles and to highlight its failure to provide support.
Prior to the hearing our representative requested all of the information from the employer that had been gathered, considered and used in making the decision. The nursery confirmed that there was no additional information to add to that it had already provided.
At the appeal hearing, chaired by the owner, a main point of contention was that the nursery claimed it did not know the extent of Michelle’s depression, as she had never raised it as a significant concern.
Our representative provided copies of text messages between Michelle and her manager, which included requests for time off to attend counselling, details of the days she was given off for the appointments along with copies of GP fit notes which clearly stated depression.
It was argued that the company did know about Michelle’s depression, or should reasonably have known and if not it certainly did now at the appeal stage and would have to consider it.
The appeal hearing was told that as Michelle had depression long-term it was likely to be considered a disability under the Equality Act 2010. It was also said that the failure to provide support or reasonable adjustments, gain a better understanding of Michelle’s condition and its impact on her behaviour and performance could be considered to amount to disability discrimination.
The unfairness of the process that led to Michelle’s dismissal was also highlighted to support the assertion that she was unfairly dismissed.
Given how she was treated Michelle’s desired outcome was to clear her name and to get a guarantee of a positive reference so that she could move on.
Our representative was able to negotiate a settlement agreement for Michelle. She got her desired outcome, secured another job and later went on to be the manager of another nursery.
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