How Laura Donnelly, expert Employment Law solicitor based in our Brighton office, assisted a professional services firm to deal fairly with an employee with mental health issues where they had ongoing performance concerns.
The Directors of AJN Accountants instructed us after ongoing performance and behavioural concerns relating to a senior employee, Joan. Their performance concerns had been ongoing for over a year and areas for improvement were noted in quarterly reviews. Joan was difficult to manage as she was argumentative and disrespectful to the Directors in front of other staff members. When challenged, Joan informed the Directors that she had been diagnosed as bi-polar.
We advised AJN Accountants that it was likely that Joan was disabled under the Equality Act. This meant that they had to be careful not to discriminate because of disability, or for her behaviour relating to it. However, that they still had the right to manage Joan’s conduct and performance.
Although some issues had been raised as part of their reviews there had not been any formal performance management process, as set out in their firm’s own policy. We advised that they needed to establish clear areas for improvement, and draw up a Performance Improvement Plan (PIP) with reasonable goals and timeframe for improvement. They should invite Joan to discuss this to agree the plan which would include support and training where necessary.
As part of the same process we advised the firm to ask Joan for further details of her illness, including how long she had been bi-polar and how it affected her at work. Further, we encouraged Joan to clarify any reasonable adjustments she felt were needed at work.
The Directors met with Joan to discuss her mental health and her performance issues. As part of these discussions the firm agreed to engage with a specialist advice charity that Joan had consulted in relation to potential reasonable adjustments.
Joan advised she was unhappy with the prospect of a performance management process and that it was causing a lot of stress. We advised the firm that they could consider offering a Settlement Agreement as an alternative to the performance process. This would include a clean break termination of employment and waiver of employment rights, in consideration of paying Joan her notice pay and a lump sum compensation payment.
We assisted the firm to offer Joan a fair settlement sum in a safe way, which she agreed to accept.
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