Disciplinary procedures for staff with mental health issues

[magicmummy1]

Do you think it's reasonable to take someone with serious mental health issues through disciplinary procedures for actively failing to comply with a number of clear instructions from their line manager?

The employee was given explicit instructions both orally and in writing. However, the said member of staff has memory problems & may not recall what she has been told. The possibility that she may have a disability has been discussed but not confirmed.

I'd be interested to know if people think it would be reasonable to discipline an employee in these circumstances, or if the mental health issues should preclude this. Capability procedures are already underway, just in case anyone is wondering.

Thanks!

[MrsShrekTheThird]

It totally depends on what the employee had already gone on record [officially] as having. If they were known to have a MH condition but hadn't told anyone officially or declared it on health forms at the start of their employment, then sadly that's an 'offence' in itself. We've been in a similar position recently, will be following this to see how it goes for you.
You can recommend that someone has a further assessment, and upon diagnosis or whatever then you (line manager, technically) can meet with them to discuss modifications to their role, ensuring that all potential safeguarding issues have been taken into account (vulnerable adults have a whole code of practice of their own in areas like mine)

Unfortunately, bottom line is that if certain duties were not performed or were done inadequately, then capability procedure arrives at your doorstep. Unless arrangements had been made prior to this, which it sounds like they hadn't. So sad, imho.

[MrsShrekTheThird]

P.S. I'd be making sure that the employee takes representation with her, though - regardless of where you stand in this situation, which (understandably, wrt confidentiality) you've not made clear in the OP. The employee needs some sort of advocate, union rep, colleague or something to speak on her behalf by the sound of it, something which they are entitled to by employment law.
Wondered if you are able to say what sort of area you / they're working in - retail, education, law, ?

[magicmummy1]

It's very sad.

Nothing is formally on record at present. There is clearly a mental health issue and employee stated very recently that she has a disability. Occupational health does not agree with this position and has asked for medical evidence - yet to be provided. FWIW, I do think there is a genuine disability.

Reasonable adjustments have been discussed, agreed and implemented, but unfortunately, some of the instructions that the employee has ignored relate directly to these adjustments - sorry, bit cryptic, but don't want to give too much detail!

[magicmummy1]

Thanks mrs sheen. The employee does have proper representation.

[magicmummy1]

Oh, and sorry, can't really say much about the sector. We provide a service to a particular client group.

[magicmummy1]

Aagh, bloody iPhone! That was meant to say mrs shrek!

[MrsShrekTheThird]

tis ok, I felt positively shiny for a moment

[magicmummy1]

[MrsShrekTheThird]

Reasonable adjustments have been discussed, agreed and implemented, but unfortunately, some of the instructions that the employee has ignored relate directly to these adjustments

if the 'adjustments' were inappropriate and didn't take account of the employee's actual needs then that's a tad tokenistic - if her memory skills are poor, for example, then some sort of task recording system needed? It's in a very subjective area isn't it.... I used to manage learning disability services (also attempting to be a bit vague) and the issues we came across were challenging at times.
Is a body like Mencap or BILD likely to be of more use than your regular HR here (have no idea, just wondering?)


another bump in case a fantastic HR type bod turns up on here :)

[magicmummy1]

Gosh, difficult to be cagey about this but don't want to give too much away. Employee made a number of requests for adjustments. Some of these were accepted, others were felt to be inappropriate for very good reasons. These reasons were explained and alternative support was agreed to address the issues in question. Employee & representative both said that they understood and agreed with reasons for refusing initial request, and that they were happy with the proposed alternatives.

After this had been agreed, employee attempted to implement support for herself that she had previously acknowledged was inappropriate - and potentially damaging. Sorry I can't give full details!

[magicmummy1]

Might try MIND, good idea.

[KatieMiddleton]

There is no reason why not to use a disciplinary process for this individual if you would for others. It makes the whole thing formal and dsabled people don't get special dispensation for gross misconduct (which refusing to follow a reasonable instruction usually is).

However, this individual may have mitgating circumstances (which you've suggested) which you would take into account when making a decision about any disciplinary action.

Your organisation should definitely carry out an investigation and the result of that will determine if disciplinary proceedings are necessary. It may be that decide no formal disciplinary action is needed but greater support is required for the individual.

[magicmummy1]

That seems a very reasonable approach, katiemiddleton. I think it would be normal to discipline another employee in comparable circumstances, and so I suppose we should be consistent about it - while taking the mitigating factors into account.

[KatieMiddleton]

That's a good point about consistency. The process should be the same for everyone but each case judged on it's own merits.

[MrsShrekTheThird]

that sounds spot on, tbh. The issue lies with the individual's ability to perform the job, which is inadequate. There are many ways of dealing with a disciplinary hearing, which I'm sure you are aware of, and varying degrees to which you emphasise particular parts of the difficulty iyswim. As I said earlier, if the bottom line is that they're not doing the job properly or are unable to be trained adequately to achieve it, or misled employers in order to gain the employment in the first place, then gross misconduct it is. So they're out of the door as far as that particular post goes. You can deal with it all very low-key and sympathetically fwiw (and I did this as well) but the outcome was the same, no heading for a nasty bloodbath or anything but the job needs to be done by somebody competent. Signpost to other areas and offer reference, re-applying for a different grade, or whatever, but basically don't continue with a situation where somebody isn't coping and is possibly putting others and themselves at risk in some way or other.