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Mental health matters are complex and navigating those matters during performance or disciplinary processes can be difficult for both parties. In an unusual twist, the Employment Court (Court) was again required to address mental health issues connected to an employment process between the same parties four years later.
In 2022, the Court considered a case where an employee, Ms H, advanced disadvantage grievances in respect of her employer’s decisions around a disciplinary investigation.[1] In that case, Ms H had been diagnosed with attention-deficit disorder (ADD) some years earlier and suffered from associated symptoms including anxiety and depressed mood. One of the issues before the Court was whether the employer had adequately inquired about Ms H’s medical circumstances before initiating the disciplinary process. The Court was ultimately persuaded that the employer had indeed made sufficient inquiries in the circumstances.
Ms H sought leave from the Court of Appeal to appeal that decision, which was rejected in June 2023.[2] Now that the appeals process has been exhausted, the Employment Law Team provides some insights on what the 2022 case means for employers and employees navigating mental health issues during performance or disciplinary processes.
Background
The 2018 case
The case has a complex background. In 2018, Ms H brought separate claims in the Court in respect of a performance improvement plan (PIP) and related disciplinary proceedings.[3]
In that case, the Court found that Ms H’s worsening anxiety through the process of the PIP had been incorrectly interpreted by her employer as opposition to being performance managed. This meant that the subsequent disciplinary proceeding had essentially been initiated as a result of Ms H’s ADD.
While the employer had put a number of measures in place to assist Ms H with her mental health challenges, the employer had not obtained further medical information nor assisted Ms H in obtaining this, despite being told about Ms H’s ADD early in the performance management process. The Court found that the failure to adequately consider Ms H’s medical circumstances amounted to an unjustified disadvantage. We wrote about that case here.
On its face, the 2018 and 2022 cases appear quite similar. They certainly deal with similar themes or issues and the same parties. However, the outcome of the 2022 case is markedly different.
The 2022 case
In the 2022 case, there were three incidents which the employer wished to investigate. The first incident involved disparaging comments that Ms H posted to her social media page about several people, including her colleagues. The employer had sought to initiate an employment investigation in respect of those social media posts and proposed to suspend Ms H while it carried out an investigation. However, the suspension proposal was ultimately withdrawn, and the disciplinary investigation was paused as Ms H’s father advised that she had suffered a “serious relapse” and further medical information would be provided to the employer.
The second incident involved a subsequent altercation between Ms H and another employee. The employer left open the possibility of treating the incident as a “medical management” issue on the basis that further medical information would be forthcoming.
Matters between the parties were not resolved, and Ms H initiated proceedings on the basis that the employer’s attempt to initiate a disciplinary process was unjustified.
After proceedings had been initiated, the third and final incident occurred whereby Ms H had engaged in a conversation with a colleague where she alluded to experiencing suicidal thoughts and had been self-harming.
While the first proceedings in 2018 resulted in Ms H’s grievance being upheld, the Court found in 2022 that the employer’s actions had been justified. In the Court’s view, the employer had made appropriate efforts to obtain further information, including obtaining an independent medical assessment when the information that Ms H’s father had said would be forthcoming did not eventuate. The employer had also (correctly) postponed the disciplinary process and had only continued when the independent medical assessment advised that Ms H was able to participate. Key points from the Court’s reasoning in the 2022 case and what both decisions mean for employers and employees are discussed below.
Lessons from the decisions
Mental health is relevant
Employers and employees have ongoing health and safety responsibilities in the workplace under the Health and Safety at Work Act 2015 (HSWA).
Employers have a paramount duty of care under the HSWA to ensure, as far as reasonably practicable, the health and safety of their workers. It is well accepted that the term “health” includes mental health. Mental health is potentially relevant where employers initiate performance or disciplinary processes, as seen in both the 2018 and 2022 cases.
The information available to an employer will inform the extent of their obligations
The HSWA requires an employer to acquire information as its actions are measured by the extent that it “knows, or ought reasonably to know, about the hazard or risk”.[4] Employers are not “obliged to cocoon an employee from stress or harm, nor is it the guarantor of the employee’s health and safety”.[5] However, an employer will have an obligation to inquire about an employee’s mental health or medical circumstances before initiating a performance or disciplinary process in certain circumstances.
An obligation will arise where the risk of harm is foreseeable. Whether the risk of harm is foreseeable is assessed against the knowledge of the employer at the time or the knowledge it ought to have, and not with the benefit of hindsight.
These cases offer a valuable comparison of broadly similar circumstances and the interposition of mental health within disciplinary processes. The differences between the 2018 and 2022 cases are nuanced.
In 2018:
- The employer was aware of the employee’s mental health diagnosis;
- The behavioural concerns that gave rise to the disciplinary process were because of Ms H’s known ADD condition, when she experienced worsened symptoms due to anxiety about the PIP; and
- The employer failed to make sufficient inquiries to gain information to understand the mental health effects before commencing its processes and during them.
In 2022:
- The employer commenced a disciplinary process;
- Ms H’s father then advised that she had suffered a recent “serious relapse” of her mental health;
- The employer paused its process and sought further medical information;
- No medical information about Ms H’s “serious relapse” was ever provided by Ms H or Ms H’s father;
- The employer arranged for Ms H to undergo an independent medical assessment, which concluded that Ms H was fit to work and participate in the process; and
- The employer was justified in conducting its process.
The comparison indicates that the two key related factors are:
- Causal connection between mental health and the concerns – If the employer knew or should have known that the performance or behavioural concerns were related to an employee’s mental health;
- Further medical information – Then, the employer should have obtained (or attempted to obtain) further medical information to gain an understanding of the mental health condition before undertaking employment processes.
In the 2022 case there was no causal connection, and once the employer was advised that mental health was or may be the cause it paused its process and sought further information.
As a consequence, the Court has identified that there is a pathway through mental health issues during employment processes as long as an employer is patient, in this case being prepared to pause its process, and make reasonable attempts to seek information about the condition.
Employees must also take reasonable care for their own health and safety.
The HSWA also requires employees to take reasonable care for their own health and safety.
This includes an obligation to provide their own medical information to their employer where it is relevant to do so, such as in the 2022 case. Failure to provide that information will hinder the employee’s case, as an employer can only proceed based on the medical information it is given (or what it could reasonably be expected to have requested).
If you have any questions about how to navigate mental health issues during employment processes, please get in touch with our Employment Law Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
[1] FGH v RST [2022] NZEmpC 223.
[2] FGH v RST [2023] NZCA 204.
[3] FGH v RST [2018] NZEmpC 60.
[4] Health and Safety at Work Act 2015, s 22(c).
[5] FGH v RST [2022] NZEmpC 223 at [66].
