September 18, 2019

An employee who has won an unfair dismissal and discrimination claim against his employer has been awarded over £96,000 in damages.

In 2015, East of England Ambulance Service Trust sacked Gordon Fleming after a long running period of absence from work due to ill-health, including severe mental health issues.

When Fleming wrote to the HR Director and Director of Operations outlining his concerns and stating that he felt suicidal, his behaviour was dismissed as “inappropriate.” The company told him they would seek legal action if he continued to write such letters. 

The tribunal emphatically sided with Mr Fleming after they found there wasn’t “any realistic prospect of a fair procedure,” and that they have “not before seen such an appalling response.”. The case was also notable as the employee had secretly made recordings of private conversations between management, some of which were deemed to be admissible in evidence at the Tribunal. 

The interim Director of People and Culture at the trust apologised for its conduct and said: “The findings... are now being remedied.”

What Should Employers Take From This Incident?

The main thing for businesses to take away is the need to treat mental health in the workplace seriously. Only 46% of people with depression and bad nerves are in employment, while the figure drops to 33.7% for those with mental illness, phobias or panics.

As a result, more can be done to help employees whose mental health is in decline. Dismissal should be a last resort, and only if there are grounds to terminate the employee’s contract in the first place.

The Law Surrounding Mental Health

At the moment, the specific law for mental health in the workplace is hazy. There have been reviews commissioned in recent years, most notably the one by Lord Stevenson and Paul Farmer in 2017. However, while the findings have been adopted by the Conservative and Labour parties and the Scottish government, there is a gap between mental and physical discrimination.

The courts have ruled that no job is intrinsically harmful to mental health. So, how can employers tell if there is a problem? The key is to use the law for physical harm and adapt it to mental health. A business should always try and foresee risk and take reasonable steps to avoid it where necessary.

Commenting on the case, specialist employment lawyer, Gwyn Edwards said “Long term absence cases resulting from mental health issues can be extremely difficult to resolve, particularly if the employee refuses to participate fully with the employer. One of the issues in this case is that the employer’s HR staff appeared to lose control of their emotions and made a number of highly inappropriate comments with the effect of undermining the fairness of the process. The case is a reminder of the importance of patience and objectivity when dealing with these types of issues“.

How Can Businesses Protect Themselves And Their Employees?

Take responsibility for mental health by being proactive. A strategy to help people with their mental wellbeing in the workplace is an excellent first step. Asking people who suffer from problems and understand the topic is a fantastic way to make sure the plan is effective.

As always, training is a major part of combating the problem. When employees understand the signs and what steps to take, they won’t feel as lonely or isolated. Some businesses go the extra mile and start a counselling programme or dedicated helpline. Developing an open atmosphere where interactions are positive is another useful tool.

If in doubt, there are initiatives in the UK that are trying to reduce the stigma. Time to Change is the most popular. Finally, don’t forget to review your policies so that they aren’t outdated.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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