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MENTAL ILLNESS IN THE WORKPLACE
Case studies on the legal rights and obligations in Australia of
mentally disabled employees
Rolf Driver 1
Introduction
Employees and prospective employees who exhibit symptoms of mental illness
present challenges for their employers or prospective employers. Mental
illness is commonly associated with abnormal behaviours.
Those behaviours may be difficult for others to cope with and may put others
at risk. The disturbed behaviour of an individual impacts on those around him
or her, in particular co-workers, employers, clients and other members
of the public. Mental illness and its associated behavioural problems may
impact on the capacity of an employee to work. The symptoms of mental
illness may impact upon the conduct of a business, because of the adverse
effect the behaviour of a mentally ill employee may have on co-workers or
clients of the business.
Legal issues concerning the employment of a mentally ill person can arise for
employers in relation to both hiring and firing and in relation to the imposition of
discipline. Legal issues can also arise in relation to duties of care owed by
employers to their employees and members of the public such as persons invited
onto business premises. Legal issues can also arise in relation to employment
entitlements such as sick leave.
This paper addresses those legal issues in the context of both industrial law and
human rights law in Australia.The paper then examines the application of some legal principles in two particular
cases.
The legal framework
Industrial law
At the Federal level, industrial law is regulated by the Workplace Relations Act 1996.
The Australian Industrial Relations Commissions (AIRC) exercises a fact finding and
conciliation jurisdiction and the Federal Court of Australia and the Federal
Magistrates Court of Australia deal with legal claims either not within the jurisdiction
of the AIRC or which have not been resolved by it.
A large proportion of employee claims relate to dismissal from employment. A
distinction needs to be drawn between unfair dismissal from employment and
unlawful dismissal. The AIRC decides whether a dismissal within its jurisdiction was
unfair. It determines “whether a termination was harsh, unjust or unreasonable”2.
The question of whether a termination is harsh, unjust or unreasonable is subject to
statutory qualifications that the AIRC must have regard to, namely:
(a) whether there was a valid reason for the termination related to the employee’s
capacity and conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason
related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee –
whether the employee had been warned about that unsatisfactory performance
before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or
service would be likely to impact on the procedures followed in effecting the
termination; and
(f) the degree to which the absence of dedicated human resource management
specialists or expertise in the undertaking, establishment or service would be
likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the AIRC considers relevant3.
In considering whether there is a valid reason for a termination of employment the
AIRC must be satisfied that the particular conduct alleged to provide the reason for
termination actually occurred and was sufficient to constitute a valid reason for
seeking office as, or acting or having acted in the capacity of, a representative
of employees;
(e) the filing of a complaint, or the participation in proceedings, against an
employer involving alleged violation of laws or regulations or recourse to
competent administrative authorities;
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital
status, family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin;
(g) refusing to negotiate in connection with, make, sign, extend, vary or terminate
an Australian Workplace Agreement (AWA);
(h) absence from work during maternity leave or other parental leave;
(i) temporary absence from work because of the carrying out of a voluntary
emergency management activity, where the absence is reasonable having
regard to all the circumstances.
It can be seen that reasons (a) and (f) will be relevant in the case of a mentally
disabled employee who has been dismissed. In relation to reason (a), a temporary
absence includes absence for which a medical certificate is supplied within 24 hours
of the commencement of the absence or a longer period reasonable in the
circumstances. In relation to ground (f), a termination based on “psychological
symptoms” is sufficient to constitute termination for mental disability11. In that case,
however, the employer was able to satisfy the Court that the employee was unable to
fulfil the inherent requirements of the job 12 . It is not unlawful to terminate
employment for one of the proscribed reasons where that reason is based on the
inherent requirements of that particular position concerned13.
There are a range of remedies available for unlawful termination. These include the
imposition of a penalty, reinstatement or the payment of compensation (without
limitation).
Human rights law
At the Commonwealth level, rights of mentally disabled employees and potential
employees are protected by the Disability Discrimination Act 1992 (“the DDA”).
“Disability” is broadly defined in the DDA and includes past, present and future
disabilities as well as imputed disabilities14. Discrimination includes both direct and
indirect disability discrimination. The DDA makes it unlawful to discriminate on the
ground of disability in a range of areas of public life including employment15.
Relevantly, a “disability” is defined under s.4 of the DDA to include:
(a) the total or partial loss of a person’s bodily or mental functions;
(b) ~ (e) ….
(f) a disorder or malfunction that results in a person learning differently from a
person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes,
perceptions of reality, emotions or judgement or that results in disturbed
behaviour.
In the 2003 decision of Purvis v New South Wales Department of Education and
Training16 the High Court of Australia drew a distinction between a disability and its
manifestations. The case concerned a student who suffered from behavioural
problems and other disabilities resulting from a severe brain injury. He was excluded
from school because of his behaviour. The majority of the Court found that it was
necessary to identify a disability not only by reference to the psychological changes
that may be brought about by an illness but also the behaviour caused by the illness
or injury. Nevertheless, the exclusion of the disabled student was not unlawful
because it resulted from the student’s behaviour rather than because of his disability.
Discrimination under the DDA may be direct or indirect. Section 5 of the DDA
defines direct discrimination as treatment of the person discriminated against
because of that person’s disability that is less favourable, in circumstances that are
the same or are not materially different than the discriminator treats or would treat the
person without the disability. In any case involving a claim of direct discrimination
there will be issues of causation, intention and knowledge on the part of the alleged
discriminator. It is also necessary to identify a “comparator” against whom the
person aggrieved is to be compared.
Indirect discrimination is defined by s.6 of the DDA to mean the imposition by the
discriminator of a requirement or condition on the aggrieved person with which a
substantially higher proportion of persons without the disability comply or are able to
comply, which is not reasonable having regard to the circumstances of the case and
with which the aggrieved person does not or is not able to comply.
Section 15 of the DDA deals with discrimination in employment. The section
provides that it is unlawful for an employer to discriminate against a person on the
ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be
offered employment; or
(b) who should be offered employment; or
(c) in the terms or conditions on which the employment is offered.
Further, the section provides that it is unlawful for an employer to discriminate
against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the
employee; or
(b) by denying the employee access, or limiting the employee’s access, or
opportunities for promotion, transfer or training, or to any other benefits
associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
It is a defence to a claim of unlawful discrimination in employment if the employee is
unable to carry out the inherent requirements of the particular job. In X v
Commonwealth of Australia17 the High Court of Australia found that the inherent
requirements of a particular job are not confined to the physical ability or skill of the
employee to perform the characteristic task or skill of the employment. In most
employment situations, the inherent requirements of the employment will also require
the employee to be able to work in a way that does not pose a risk to the health or
safety of fellow employees.
There are a range of remedies available to the Courts in dealing with claims of
disability discrimination. These include reinstatement but almost invariably,
compensation in the form of an award of damages is awarded. There is no limit on
the amount of damages that can be awarded. Damages are available for both
economic and non economic18 loss.
Case studies of alleged disability discrimination involving mentally ill
employees
Two particular cases illustrate the application of the principles of disability
discrimination to employment. In the first case19 the employee was successful in
establishing that he was discriminated against in the course of his employment
because of his Attention Deficit Disorder and depression. In the second case 20 the
applicant was unsuccessful in establishing disability discrimination in her employment
because of her bi-polar disorder. In both cases the applicants had been dismissed
from their employment because of behavioural problems. In both cases there was a
protracted period of examination by the employer of the particular employee’s
circumstances. In light of the behavioural problems exhibited by the employees, the
employers addressed performance and discipline issues. In both cases, the
employees were initially permitted to continue in their employment, subject to special
conditions or restricted duties but were ultimately dismissed. The case studies
illustrate how the approach taken by the employer in similar circumstances can vary,
leading to differing legal outcomes.
Ware v OAMPS Insurance Brokers Ltd
Mr Ware suffers from attention deficit disorder and depression. He alleged that
OAMPS discriminated against him in his employment because of his disability by
changing the terms and conditions of his employment, by terminating his employment
and by subjecting him to other detriments.
OAMPS acquired the company Mr Ware previously worked for on 1 October 2001.
Mr Ware claimed that after OAMPS assumed ownership of the company his volume
of work increased and he was given very little support. He claimed that he found it
difficult to cope and he submitted his resignation in September 2002 but he was
persuaded to stay and his salary was increased to $80,000 per annum plus
commission. As a result of an internal restructure he was given an assistant, but he
claims that the assistant was kept busy with her own portfolio of clients and offered
little practical support to him. In early 2003 OAMPS transferred Mr Ware to a
technical/marketing role. Mr Ware claimed that he was not consulted about the
change, nor was he provided with an outline of his role and responsibilities. He
claimed that due to the high volume of work and unrealistic time frames, he struggled
to meet deadlines and complete tasks. As a result of these pressures, and other
personal problems, he stated that he sustained psychological damage and also
developed a drinking problem. He had a tendency to consume alcohol at lunch time
on Fridays which was affecting his work. He stated that he negotiated with his
manager that he would not return to work after lunch on Fridays and he would make
up the time during the week or on weekends.
Mr Ware sought medical assistance in May 2003 and this led him to being diagnosed
with a medical condition and being admitted to hospital on 5 June 200321. He stated
that the nature of his illness was known to his manager and colleagues. Mr Ware
stated that in early July 2003, while he was on leave, he received an email from the
Parramatta branch manager, Mr Don Crocker, which contained criticisms of his work,
advice that he would be placed on probation when he returned to the office and a list
of restrictions that would apply to his duties. He claimed that he had not previously
been informed that there were issues with his performance. Mr Ware returned to
work on 14 July 2003, initially for three days a week.
Mr Ware stated that at a meeting in the workplace on 17 September 2003 Mr Crocker
advised him that he was to be demoted to the position of internal account executive
for disciplinary reasons. The new role was to commence on 22 September 2003.
Mr Ware stated that he took sick leave on 22 September 2003 due to his depressive
illness and he obtained a medical certificate from his treating psychiatrist. He
claimed that he had no opportunity to provide the medical certificate to OAMPS as he
received written advice on 26 September 2003 that his employment had been
terminated.
OAMPS denied unlawfully discriminating against Mr Ware on the ground of disability
and disputed that Mr Ware’s medical condition was the reason for the decision to
change the conditions of his employment or the decision to terminate his employment.
OAMPS asserted that the company provided a great deal of support to Mr Ware at
the time when he appeared to be experiencing personal problems which impacted on
his work performance. OAMPS stated that there was an arrangement in place
whereby Mr Ware left work early once a fortnight to visit a psychiatrist, and
management was unaware of the nature of his medical condition until he provided a
medical certificate in June 2003.
OAMPS stated that Mr Ware was transferred to a technical/marketing role in late
January 2003 because he had expressed a preference for more involvement in
technical matters as opposed to customer related work. OAMPS claimed that the
new position was offered to Mr Ware around 25 January 2003 and he confirmed the
following week that he would accept the new position. It therefore denied that there
was no consultation with Mr Ware or that he had no choice about his new role.
OAMPS stated that Mr Crocker sent an email to Mr Ware on 2 June 2003, outlining a
series of concerns about Mr Ware’s performance and attitude. The email was sent to
Mr Ware’s home as he was not at work and OAMPS claimed that it had not been
informed of the reason for his absence or that he was in hospital. The decision to
place Mr Ware on probation on his return to work was deemed necessary because of
performance and behavioural issues over the preceding 12 months. OAMPS
claimed that Mr Crocker and Mr Greg Crosby had discussed issues such as
attendance, punctuality and interpersonal skills with Mr Ware on several occasions.
OAMPS also suggested that Mr Ware’s failure to observe company policy and
procedures had exposed the company to litigation.
OAMPS confirmed that the decision to place Mr Ware in a position with less
responsibility and lower pay was conveyed to Mr Ware in a meeting on 17
September 2003 and claimed that this decision was based on the performance
issues outlined above, not his disability. OAMPS stated that it was recognised that
Mr Ware needed time to make adjustments to his expenditure and hence the
reduction in salary was not to take effect until 20 October 2003.
OAMPS stated that Mr Ware did not report for work on Monday, 22 September 2003
and did not advise his manager of the reasons for his absence. OAMPS claimed that
numerous attempts were made to contact him on his mobile phone, without success,
and, when no contact had been made by Friday the decision was made to terminate
his employment. OAMPS stated that Mr Ware’s depressive illness was not a factor
in the decision.
The Court took evidence from Mr Ware and his wife and a consultant psychiatrist, Dr
Tony Mastroianni. Dr Mastroianni gave evidence that in addition to his attention
deficit disorder and depression, Mr Ware had used alcohol to reduce social anxiety
through his adulthood, especially after the demise of a sporting career. Alcoholic
binge drinking was a significant part of his presentation when he first sought
psychiatric treatment in 2000. Mr Ware first presented with symptoms of a major
depressive illness in late 2001. There were family issues involved as well as work
stress reported around August 2002. Mr Ware was hospitalised at the Northside
Clinic in Sydney in June 2003. Dr Mastroianni gave evidence on the depressive
impact on Mr Ware’s return to work after his hospitalisation, in particular following
receipt of the letter of demotion in September 2003. Dr Mastroianni gave evidence
that Mr Ware’s depressive illness and disability were precipitated by several
important factors including work related stressors, especially in the period between
late 2002 to late 2003. The Court also took evidence from witnesses for OAMPS
who were responsible for supervising Mr Ware and managing the business.
The Court found that Mr Ware’s duties were altered in early 2003 but that Mr Ware
had agreed to the new duties and expressed himself to be happy with them. Mr
Ware’s remuneration package had also been altered at his request. Some staff at
OAMPS knew or suspected that Mr Ware suffered from attention deficit disorder and
depression. OAMPS management was aware of Mr Ware’s condition by June 2003.
Both the attention deficit disorder and depression were disabilities for the purposes of
the DDA.
Mr Ware had claimed both direct and indirect discrimination. In relation to the direct
discrimination claim, Mr Ware asserted that his demotion and dismissal were
discriminatory as well as other changes in the workplace affecting him. Mr Ware’s
assistant had been removed early in 2003 but this was as a result of unacceptable
behaviour towards her by Mr Ware. It was not discriminatory because the same
action would have been taken if Mr Ware did not have a disability. Likewise, the
imposition of work restrictions on Mr Ware from July 2003 was not discriminatory.
The work restrictions were imposed because Mr Ware had failed to meet his
employer’s requirements and it was made clear to him that if he continued his
unacceptable behaviour, he could expect further disciplinary action, including
dismissal. Of particular concern was Mr Ware’s excessive drinking and verbal
outbursts. The Court found that Mr Ware’s work performance had declined, he
exhibited a mercurial and fiery temperament, drunkenness and offensive behaviour,
had unauthorised absences and neglected his duties and was ultimately found to be
untruthful. He had breached the trust and confidence essential to the employment
relationship between him and OAMPS. Over a period of at least six months Mr Ware
had given his employer sufficient cause to dismiss him summarily. There was no
discrimination up to July 2003 because a person without the disability would have
been subjected to the same detriments. In fact, the hypothetical comparator would
have been dismissed before Mr Ware had been.
The problem was that rather than dismiss Mr Ware, his employer decided to give him
another chance. He was informed of specific performance indicators that he would
have to meet on his return to employment following his period of hospitalisation. He
accepted those performance requirements. Unfortunately, after Mr Ware had
returned to work, there was no assessment of his performance against the stipulated
criteria. Rather, as a result of an absence from employment (which was not one of
the performance criteria) Mr Ware was summarily demoted on 13 September 2003
and his salary was reduced significantly. Unauthorised absences from the workplace
had been tolerated previously and the absence from the stipulated performance
criteria of any mention of unauthorised absences meant that Mr Ware had no
expectation that he would be demoted or dismissed because of them. Also, most of
his absences were explained and accepted after the event, including attendance at a
funeral. The Court found that, although Mr Ware was ostensibly demoted because of
his absence from the workplace, the real reason was that his manager had changed
his mind. Having agreed reluctantly to accept Mr Ware back following his
hospitalisation, his manager became fed up and changed his mind precipitantly.
When he was told of his demotion, Mr Ware suffered a major depressive episode.
There were several further days absence from the workplace for which Mr Ware
subsequently obtained a medical certificate. Nevertheless, Mr Ware’s employment
was terminated, ostensibly because of those absences. The real reason was,
however, that Mr Ware’s employer had changed its mind about whether it would
continue to tolerate his disability. There was no assessment of his performance
against the performance criteria. The Court found that the hypothetical comparator
would have been assessed against the performance criteria before being demoted or
dismissed. The demotion and termination were based upon pre-existing concerns
about Mr Ware’s performance and behaviour which, while they had justified dismissal
earlier, had been forgiven subject to his meeting performance indicators. The preexisting
problems either merited dismissal or they did not. Having accepted that the
pre-existing problems did not merit dismissal the employer could not turn around and
change its mind without doing what it said it would do, namely assess performance
against the specified criteria. By recanting the procedure that the employer
specifically said would be applied, the em ployer discriminated against Mr Ware,
justifying the payment of damages.
The indirect discrimination claim failed on the basis that the conditions, requirements
or practices imposed upon Mr Ware were a reasonable response by the employer to
Mr Ware’s declining work performance and bad behaviour. Further, Mr Ware could
and generally did comply with those conditions, requirements or practices.
Mr Ware received general damages for non-economic loss of $10,000 and special
damages for non-economic loss in the form of termination benefits that he would
have received if he had been given notice of termination pursuant to his employment
contract.
Hollingdale v North Coast Area Health Service
Ms Hollingdale suffers from a bi-polar mental disorder and also keratoconus (a
condition related to cataracts of the eyes). She was a psychologist employed by the
Area Health Service on the NSW North Coast. She claimed that the North Coast
Area Health Service discriminated against her on the grounds of both of her
disabilities by terminating her employment as well as numerous other matters.
Ms Hollingdale was employed by the Area Health Service as a clinical psychologist.
Her employment commenced on 31 May 1990 and extended for about 12 years. Ms
Hollingdale stated that in around August 2001 the Area Health Service alleged that
her behaviour in the workplace was inappropriate. She stated that the Area Health
Service refused to allow her to work in her substantive position as a clinical
psychologist even though she was certified fit to do so.
Ms Hollingdale alleged that from December 2001 she was forced by the Area Health
Service to work as a project officer. She stated that this work was not suitable for her
as it required her to work constantly on a computer which was difficult for her
because of her vision disability. Ms Hollingdale alleged that the Area Health Service
refused to accept her general practitioner’s certificate which stated that computer
work aggravated her visual disability.
Ms Hollingdale was dismissed from her employment at the Area Health Service in
August 2002. Ms Hollingdale asserted that she was treated less favourably in her
employment than comparable employees due to her disabilities. Her complaint
focused upon a process of disciplinary action taken against her, leading ultimately to
her dismissal.
The Area Health Service responded by explaining that between May and July 2001 it
became concerned about Ms Hollingdale’s behaviour at work. The Area Health
Service stated that Ms Hollingdale was “hostile and aggressive” towards Area Health
Service employees and community members during this period.
The Area Health Service stated that on 23 July 2001 a letter of concern was written
to the New South Wales Psychologists’ Registration Board in relation to Ms
Hollingdale’s behaviour. The Area Health Service stated that it provided Ms
Hollingdale with alternative duties as a project officer pending investigation by the
Registration Board. The Area Health Service stated that it made several attempts to
accommodate Ms Hollingdale’s disability in the project officer position, including
reducing her working hours. The Area Health Service stated that the duties of the
project officer position were varied and did require computer work but there were
other duties which did not involve computer work. The Area Health Service told the
Human Rights & Equal Opportunity Commission (HREOC) that at no time when
working as a psychologist, when she was required to use a computer, did Ms
Hollingdale advise the Area Health Service that she had a visual disability.
The Area Health Service denied that Ms Hollingdale’s disabilities were a factor in
their decision to terminate her employment.
The Court took evidence from Ms Hollingdale, several co-workers, managers from
the Area Health Service, and Dr Gregory Pearson, a consultant psychiatrist. Dr
Pearson reported that Ms Hollingdale presented in 2004 with moderate persistent
anxiety and depression. He ventured the opinion that a manic episode suffered by
Ms Hollingdale in February 2000 had been poorly managed by her colleagues. He
believed that Ms Hollingdale had encountered difficulties in her professional
relationships with colleagues in June and July 2001. There had been a drawn out
industrial process which finally culminated in Ms Hollingdale’s dismissal. Dr Pearson
gave a diagnosis of bi-bolar mood disorder, and underlying histrionic and narcissistic
personality traits.
Another consultant psychiatrist, Dr Chris Pollack, also gave evidence. He confirmed
Ms Hollingdale’s bi-polar condition but found it to be stable during the period of his
consultation.
The Court found that, while there were numerous allegations of discrimination, there
were two critical issues, namely whether the suspension of Ms Hollingdale from her
position as a clinical psychologist and the termination of her employment were
unlawfully discriminatory under the DDA. Ms Hollingdale had exhibited inappropriate
behaviour between May and August 2001 and the Court considered whether the
Area Health Service discriminated against Ms Hollingdale in dealing with that
behaviour. The Court then considered whether the subsequent suspension, a
discipline and complaints process, the provision of alternative employment intended
to deal with her vision disability and dismissal in August 2002 were discriminatory.
The Court finally considered whether a reference of Ms Hollingdale to the
Psychologists’ Registration Board was discriminatory.
The Court found that over a decade up to 2001 Ms Hollingdale had worked in a small
and isolated workplace where her bi-polar disorder was known and dealt with in an
ad hoc way. In particular, Ms Hollingdale had been permitted to self medicate from
Area Health Service medical supplies. She suffered a major bi-polar episode in 2000
which caused her to be hospitalised. Ms Hollingdale’s manager realised that Ms
Hollingdale’s condition would need to be dealt with better. Staff of the Area Health
Service started keeping written records of events as they occurred. Her manager
became concerned during 2001 that Ms Hollingdale was having a bi-polar episode
when she exhibited serious inappropriate behaviour over several months. Medical
intervention was obtained but Ms Hollingdale refused to co-operate and was later
able to provide her own medical opinion that she was fit for work. The Court found
that the Area Health Service had acted appropriately in seeking medical intervention
for what it thought was a medical issue. Ms Hollingdale was suspended from duty
because she was believed to be too unwell to work. It was not a discriminatory
action because a hypothetical comparator without Ms Hollingdale’s condition would
have been similarly treated. Whatever the cause of Ms Hollingdale’s behaviour was,
the Area Health Service could not continue to tolerate it as it was impacting upon the
workplace adversely.
Ms Hollingdale instituted a grievance procedure in response to her suspension and
the Area Health Service pursued a disciplinary process against her in response to
her medical opinion that she was fit for work. Ms Hollingdale’s complaints about the
process centred upon delay but her own combative attitude to the process was a
significant contributor. Medical opinion as to Ms Hollingdale’s fitness for work varied
over time and for a significant period workers compensation for an adjustment
disorder was paid. During that period, it was not appropriate for Ms Hollingdale to be
subjected to the disciplinary process and it was left unresolved. Ms Hollingdale’s
suspension was lifted in December 2001 and she was asked to return to work. At
that stage, disciplinary action against Ms Hollingdale was incomplete and there was
also an unresolved question of her capacity to practice as a psychologist. Pending
resolution of those issues, Ms Hollingdale was asked to work in a project officer’s
position. She was dissatisfied with that position and essentially refused to perform
the duties of it. She claimed a physical disability because of her keratoconus but the
Court found that the employer had taken all steps necessary to accommodate that
disability. Ultimately, Ms Hollingdale was dismissed from her employment because
of her refusal to attend work when she was found to be fit to do so. Ms Hollingdale
had at that stage, submitted a medical certificate that she was unfit but the employer
reasonably refused to accept it on the basis that Ms Hollingdale was malingering.
The Court found that an employer does not breach the DDA by dismissing a
malingerer or someone who is believed to be one.
The Court also found no discrimination in the laying of a complaint against Ms
Hollingdale with the Psychologists Registration Board. The Court found that the
laying of a complaint was not a detriment for the purposes of her employment
because her possible unfitness was an issue extending well beyond particular
employment. It went to her fitness to practice as a psychologist at all. The
application by Ms Hollingdale was dismissed with costs.
Conclusions
In both of these cases, poor behaviour had been tolerated by the employer for some
time. In the case of Ms Hollingdale, her condition had been neglected by her
employer for about ten years. Both Mr Ware and Ms Hollingdale had exhibited
unacceptable behaviours in the workplace that warranted action being taken against
them. In the case of Mr Ware, dismissal had been warranted but that action was not
taken. In the case of Ms Hollingdale, medical intervention or, in the alternative, a
disciplinary process was warranted and both actions were taken. The medical
intervention was properly taken in the belief that the behaviour involved a medical
condition. Later, a disciplinary process was undertaken in the light of Ms
Hollingdale’s insistence that there was no medical issue. Both employers acted
appropriately by requiring, or offering, special duties. In the case of Mr Ware, there
was to be a graduated return to work and an assessment of performance. In the
case of Ms Hollingdale, there were special duties pending a resolution of the
disciplinary process and the assessment of her fitness to practice as a psychologist
by the registration board.
In the case of Ms Hollingdale, the employer acted lawfully in insisting that Ms
Hollingdale perform the duties that were offered to her. She did not care for those
duties and sought to avoid them by reference to her physical disability but she was
reasonably found to be malingering. That justified her dismissal.
In the case of Mr Ware, he accepted the graduated return to work and the strict
performance criteria against which he was to be judged but he was given no
opportunity to demonstrate his performance. His employer abruptly changed its mind
and demoted and then dismissed him, purportedly on the basis of absences from the
work place which were not part of the assessment criteria.
Key points to emerge from these cases are first, that it is reasonable and may be
necessary for an employer to make clear to a mentally disabled employee what is
expected of them and what will not be permitted. Secondly, having adopted policy
and procedures in relation to a disabled employee, the employer needs to stick to
them. An employer is entitled to be fair but firm but must be consistent.
Further, it is necessary to draw a clear distinction between disruptive or unacceptable
behaviour and medical issues. An employer is entitled to deal with unacceptable
behaviour but cannot discriminate on the basis of a disability. Finally, if a disabled
employee is given a second chance then they are entitled to be judged against the
conditions that are imposed on them.
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