There has been much documented about dealing with mental health (and avoiding mental health discrimination) in the workplace. The 2017 Mental Health at Work Report revealed that despite improvements, a lot of work still needs to be done, in particular to:
(1) encourage employees to talk about mental health issues with their employer; and
(2) improve the mental health training of managers.
Although clearly improvements in dealing with mental health in the workplace will provide more protection to employees who have mental health issues, this article investigates whether or not the law could do more to provide protection to employees who suffer from mental illnesses.
As it stands an individual isn’t protected by the law for ‘substance abuse’, even if the substance abuse is a manifestation of a mental illness. Discrimination law does not protect the employee who is addicted to anti-depressants for example, or self-medicating with alcohol. The Royal College of Psychiatrists has said:
“mental illness may lead someone to abuse substances. They may want to block out their symptoms or the side-effects of medication. They may have difficulties in sleeping, feel lonely or simply wish to boost their self-confidence”.
The charity Rethink, says:
“Some people use them to try and deal with their symptoms. This is called self-medication”.
Perhaps the law should intervene and provide protection to those who turn to substance abuse to deal with a mental illness that is legally recognised as a disability. A possible intervention could be to give these individuals access to the ‘discrimination arising from disability’ claim. This could force employers to ‘deal’ with the mental illness, rather than dismiss (on the grounds of gross misconduct) or sanction an employee as a consequence of the substance abuse, that arose from the mental illness.
Even if the above ‘possible’ intervention doesn’t suit, one could argue that the law should better recognise mental health discrimination in light of the clear correlation between mental illness and substance abuse, so as to protect those with legally-recognised mental disabilities abusing substances.
By Zahid Reza
Image used under CC courtesy of KellyB.Read More
Dr Drzymala worked for Royal Surrey County NHS Foundation Trust (‘Trust’) on six successive fixed-term contracts (with each fixed term contract lasting six months), has won her unfair dismissal claim for the Trust not renewing her fixed term contract. See here and here for more information on unfair dismissal claims.
In around April 2014, Dr Drzymala applied for a permanent post. 20 minutes after the interview, she was told that she was unsuccessful and that the other candidate had been selected. The Trust discussed that there may be future roles as a speciality doctor, however this was a lower-ranking post than Dr Drzymala’s Locum Consultant post. On 23 June 2014, the Trust gave notice that her employment would end, as the Trust chose not to extend her latest fixed-term contract.
Dr Drzymala wrote a formal grievance, which included an appeal against dismissal. By the time she left on 30 September 2014, the grievance process had not concluded.
The Employment Appeal Tribunal (‘EAT’) upheld the Employment Tribunal’s finding of unfair dismissal. The Trust’s mistakes in this case was not to properly discuss the possibility of alternative employment and not giving Dr Drzymala the right of appeal against the non-renewal of her fixed-term contract.
This case illustrates that employers must be aware that, in the case of employees with at least 2 years’ service, the non-renewal of a fixed-term contract counts as a ‘dismissal’ for the purposes of unfair dismissal.
Therefore with these employees, employers must ensure that the reason for not renewing is a ‘fair’ reason and is ‘reasonable’ (reasonable in relation to the ‘procedure’, and the ‘decision’). In this case, the Trust clearly failed on procedural grounds, which led to the EAT upholding Dr Drzymala’s unfair dismissal claim.
By Zahid RezaRead More
16 businesses have recently been found to be in breach of immigration laws, as between them they employed 41 illegal workers. As a consequence, the businesses have been handed fines totalling £505,000 and 20 directors have been given disqualifications for six to seven years.
Cheryl Lambert, Chief Investigator at the Insolvency Service, said:
“Employing illegal workers is not consequence free … these directors sought an unfair advantage over their law-abiding competitors by employing people who were not entitled to work legally in the UK. It is bad for business and bad for society as a whole … the Government is pursuing bad employers.”
This is an illustration of the consequences employers can face if they do not ensure their workers are entitled to work in the UK. It is always useful for employers to include a contractual clause addressing the right to work in the UK in the contracts of employment, and to include a policy in the staff handbook so that businesses are reminded of their obligations. Additionally, Employers may wish to train all staff involved in recruitment to get the appropriate proof that new workers are entitled to work in the UK.
By Ryan WheatleyRead More
Zelda Perkins (assistant to Harvey Weinsten) has recently done her first broadcast interview for BBC Newsnight, thereby allegedly breaking her settlement agreement confidentiality clause (in America, where it is called a non-disclosure agreement, NDA) that she signed 19 years ago.
Settlement agreements are useful documents given to departing employees, typically to prevent an employee bringing claims against their employer, not to speak ill of their employer (non-derogation) and not reveal any confidential information in exchange for money.
She received £125,000 for signing the NDA. Zelda says that she was given the NDA to silence her from telling anybody about an incident that left a colleague accusing movie mogul Mr Weinstein of trying to rape her, an allegation that he denies.
Ms Perkins has told the BBC “The last 19 years have been distressing, where I’ve not been allowed to speak, where I’ve not been allowed to be myself…It’s not just distressing for me, but for lots of women who have not been able to own their past, and for many of them, their trauma. Although the process I went through was legal, it was immoral.’
This story has brought to light an intriguing question: Are UK settlement agreement confidentiality clauses enforceable?
There is not a straightforward answer to this, as a settlement agreement confidentiality clause could be invalid on the basis of public policy because it is a ‘contract damaging to morality’ or a ‘contract that interferes with the machinery of justice’. This is because there is a distinct possibility that such a settlement agreement could be used to cover up sexual crime.
Geoffrey Robertson QC has said ‘There is, however, an entirely legitimate case for the UK Parliament to pass an amendment to the Criminal Justice Act, making it a crime to offer money to employees to silence them in relation to criminal offences that they know about’.
It is unlikely that Parliament intended settlement agreements to be used in a way which could cover up criminal acts or prevent whistleblowing.
In summary, the Harvey Weinstein saga appears to have raised an important legal question as to whether there should be an exception to settlement agreements being used to cover up wrongdoing. The question now is whether Parliament will do as Geoffrey Robertson has suggested, in making it illegal to compensate employees so they are silent about criminal offences that they know about.
By Zahid Reza
Image used under CC courtesy of David ShankboneRead More