The need to focus on other important issues with poor performance.
Published 08 March 2023
Living with a long-term mental health issue is incredibly difficult, so to lose your job as a direct result of it can feel cruel and extremely unfair.
Airport-based retail assistant Leah was fired for poor performance ‘despite previous warnings and support being provided.’
Devastated Leah felt she had no choice, but to accept the decision before she contacted our Employee Support Centre.
When forlorn Leah first spoke to our representative she apologised for wasting his time, believing she was entirely to blame for what happened.
Leah explained how she had suffered with depression for a number of years. Her employer was aware of it because she had a number of sickness absences due to poor mental health.
Leah accepted her performance was poor during the period in question. It was due to depression, her marriage breaking down and eventually ending, being forced to move home, losing her best friend and still grieving and huge financial problems.
Even in cases where an employee admits allegations, there can be mitigating factors that mean dismissal is not always a reasonable outcome. As would prove to be the case with Leah.
Our representative reviewed all of the evidence that led to Leah being dismissed. He believed Leah had a case to challenge the outcome.
It was on grounds of discrimination because of a disability and because it was an unfair dismissal. Depression or any other mental health issue lasting 12 months or more can be considered a disability.
This was discussed and explained to Leah who was genuinely heartbroken after losing a job she loved and had done for six years.
Our representative wrote a disciplinary appeal letter and submitted it to the employer on behalf of Leah.
Prior to any disciplinary appeal it is essential to understand the outcome that someone wants to achieve
Leah wanted to be reinstated and supported to return to her role, but she faced a dilemma.
Her mum thought it best if Leah sought a settlement agreement rather than go back, and to avoid taking the case to an employment tribunal.
Leah discussed both options with our representative before confirming reinstatement was her desired outcome.
Prior to the appeal hearing our representative requested a range of information from the employer in order to prepare to present Leah’s appeal.
Included in the requested information was evidence that would show the employer was aware Leah had depression e.g. return to work interviews and an occupational health report, along with details of any support or adjustments provided to help her. No evidence of any support was provided.
Our representative also did not receive anything in response to his request for evidence of Leah’s poor performance, previous warnings and of any support or training to assist her to perform as expected.
At the appeal hearing our representative explained that as Leah had suffered long-term with depression it could be considered a disability under the Equality Act 2010.
The personal impact of it along with the inevitable effect of it on her work performance were explained along with the significant personal issues she was dealing with, which exacerbated the symptoms of her depression.
The fact the employer knew Leah had depression, had not supported her, failed to provide tangible evidence of the performance concerns or of support to help address any such issues, was used to substantiate the assertion she had suffered disability discrimination.
In a comprehensive appeal presentation our representative argued strongly that Leah had been treated unlawfully and unfairly and should be reinstated.
The disciplinary hearing chair was initially defensive of the process and combative, before softening her approach in the face of compelling evidence to support Leah’s case.
The following week Leah received a letter confirming the appeal had been successful.
The letter also included details of an occupational health referral, which was intended to provide the employer with advice on how it could best support Leah upon her return to work.