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making allowances for mental illness

Employment and Discrimination Law

making allowances for mental illness

Postby atticus » Tue Nov 17, 2015 8:44 am

Section 15 of the Equality Act 2010 provides that an employer does not discriminate on grounds of disability if the employer did not know, and could not reasonably have been expected so, that the employee had the disability.

Some disabilities will be more obvious than others, and I am sure that we can all think of examples. However, mental health has the capability to be a "hidden" disability. A person who expects others to make allowances for his or her mental illness therefore need to disclose it, to ensure that those he expects to make adjustments are aware of his disability and therefore of the need to allow for it.

Those who do not have any particular experience of dealing with mental illness may confuse the signs of that mental illness with something else, such as common or garden stupidity, if the necessary disclosure is not made.
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Re: making allowances for mental illness

Postby smuge » Tue Nov 17, 2015 3:41 pm

Interesting conversation. :-)
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Re: making allowances for mental illness

Postby Michael » Thu Nov 19, 2015 2:08 am

I'm not looking for advice but this fits in quite well with a current topic.

I have an employee working for me who did something that was deemed to be inappropriate behaviour towards a customer. I performed a conduct case and the result was that he was found guilty and I gave him a suspended dismissal. (Thinking about it now he actually got off a little lightly, so he is a lucky man )He is now one step away from being dismissed if he were to do something similar. My fellow managers believe his actions were due to stupidity as I did when I decided on the case.

Since then his role has slightly changed and he is working more in my vicinity allowing me to observe him and his behaviour more . I have in the past known people with ADHD and my belief is that he could have an adult form of ADHD which can come under the Equality Act 2010 .

He will sooner or later IMO do something else that will cause him to be charged again due to his behaviour which could the next time lead to his dismissal . If something were to happen again I would refer him to the EHS before I proceeded with the conduct case for a general report but if he has ADHD his condition is either undiagnosed or he hasn't revealed it so it will not come up. .

I could be wrong with my beliefs and know this and he could just simply be a stupid person , so believe it would be wrong for me to treat him in differently to everyone else .
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Re: making allowances for mental illness

Postby Hairyloon » Thu Nov 19, 2015 2:45 am

Michael wrote:I could be wrong with my beliefs and know this and he could just simply be a stupid person , so believe it would be wrong for me to treat him in differently to everyone else .

Reasonable adjustment means making adjustments that are reasonable.
If he is stupid then the reasonable adjustment is to treat him like he is stupid and to not give him grief for doing something stupid.
I have worked with some very stupid people. All of them bloody lovely people.
But they are stupid: if you tell them to dig a hole , they will not think to stop unless you tell them to.
In that situation, the reasonable adjustment you should make is to be sure to tell them to stop.

I have an employee working for me who did something that was deemed to be inappropriate behaviour towards a customer. I performed a conduct case and the result was that he was found guilty and I gave him a suspended dismissal.

I am guessing that that judgment does not sit lightly on your shoulders: if it did, then why did you bring it up?

There is a very big difference between being stupid and being an arse, but sometimes it is not easy to spot the difference.
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Re: making allowances for mental illness

Postby atticus » Thu Nov 19, 2015 6:59 am

Michael - it may be wise to have the necessary assessment or medical advice now. If your employee has an impairment that means he has a protected characteristic then you must consider what *reasonable* adjustments may be made. It is probably better to know and to make such adjustment with a view to reducing the chance of a further situation.

If, on the other hand he is just stupid, then you may deal with that in the ordinary way through disciplinary/performance management processes as necessary.
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Re: making allowances for mental illness

Postby shootist » Thu Nov 19, 2015 2:32 pm

An interesting question. At what point does stupidity become mental impairment? There has to be some sort of sliding scale, from what is perceived as 'normal', through 'not the sharpest knife in the drawer', to 'dumb as a brick'. And is being 'dumb as a brick' the same as stupid? Equally, there is a class of people I feel I can define as 'electively stupid'. People who close their minds to things they don't like.
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Re: making allowances for mental illness

Postby Hairyloon » Thu Nov 19, 2015 6:00 pm

There is an important difference between being stupid and doing something stupid. If the misconduct was a stupid act by someone who should have known better then it is a disciplinary matter. The test is simply whether he should have known better.

Stupidity is an impairment, there can be no question about that. Whether it falls under the Act is another matter.
But the requirement is for reasonable adjustments. Without reasonable adjustments the adjustments are not reasonable: that is by simple definition.
It is unreasonable to suggest that there is one level of impairment where adjustments must be reasonable and another where they need not be.

Whether the Act comes into play must surely consider whether the stupidity was a significant factor in the decision to perform the act of misconduct.
If it was, then you must consider whether it was reasonable to have given him the responsibility to take that decision.
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Re: making allowances for mental illness

Postby atticus » Thu Nov 19, 2015 6:07 pm

stupid people do stupid things. Those stupid things may have disciplinary consequences.
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Re: making allowances for mental illness

Postby Hairyloon » Thu Nov 19, 2015 9:31 pm

Do you recall Disney's Fantasia?
The bit where the broom floods the house because it was too stupid to stop: should the broom be disciplined?
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Re: making allowances for mental illness

Postby shootist » Thu Nov 19, 2015 10:17 pm

Hairyloon wrote:Do you recall Disney's Fantasia?
The bit where the broom floods the house because it was too stupid to stop: should the broom be disciplined?


Only if you would whip a robot. The broom wasn't sentient.
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