By Stephen Hammond

In January, 2006, employers got a shock when the abusive workplace actions of a sergeant lead to the employer having to pay a former RCMP officer $950,000 for negligent affliction of mental suffering.  Since the former officer was already receiving disability and other forms of compensation, it came as a bit of a shock.  I thought to myself, “I doubt this will hold up on appeal.”  Well, not only was it unanimously upheld by B.C.’s top court, but it took them a mere three weeks to bring down their judgment – five days before Christmas in 2006.  Add to that, interest and huge legal costs and you’ve got something that should have caught the attention of every employer.

The case from 2006 should have been a wake-up call about issues affecting people’s mental health. In the few years since, I’ve seen more tribunals and courts upholding the rights of employees with mental health issues and a growing impatience with the employers who are contributing to mental health problems and/or ignoring the rights of employees with some form of mental health issue.

Just before the end of 2010, I was sent a report by the Mental Health Commission of Canada (MHCC) titled Toward Recovery & Well-Being: a Framework for a Mental Health Strategy for Canada.  I was familiar with some of the cases cited in the report; others were news to me and re-enforced this trend I’ve noticed.  (full report: www.weforum.org)

According to the MHCC, seven million Canadians, or one in five – will experience a mental health problem each year. When you add addictions, it becomes one in three.  We’re talking about a number of illnesses such as depression, bipolar disorder, schizophrenia, anxiety disorders, eating disorders and personality disorders.

No one is expected to be an expert in these areas and I put myself in the same category as every other misinformed Canadian when it comes to mental health.  There is a little part of me that still judges and a big part of me that still doesn’t understand.  But I’m getting better on both fronts and I find our courts and tribunals will excuse both…as long as we’re not stuck there.  In other words, no one cares what silly stereotypes pop into our head as long as we don’t act on them.  And when we don’t know enough, we should ask more questions and seek assistance.

If you’re wondering what any of this has to do with work, then pay attention with two issues in mind:

Hiring people with mental illnesses.
First, of course, is that employers can’t discriminate against persons with disabilities, mental or physical, unless doing so would cause the employer undue hardship. In 2008 the Ontario Superior Court upheld a decision which captured my attention the year before from the Ontario Human Rights Tribunal.  Paul Lane was hired as a software program tester with ADGA Group Consultants Inc., who was creating software for the Department of National Defence Canada.  A couple days after starting his job, he told his manager that he has Bipolar 1 Disorder and that she should intervene if he exhibits any inappropriate behavior.  He also let her know that any “abuse” from co-workers could trigger his mania.  Partly due to his concern about how she took this news, he began exhibiting manic behaviours and within 10 days of his employment, he was fired.

When the tribunal ruled against the company, they ordered ADGA to pay Lane $35,000 in general damages, $10,000 “for the profound effect their actions had on Lane’s mental state” and more than $40,000 in special damages and interest.  The adjudicator made it clear that it was unacceptable to write off Lane and his illness without finding out what he was capable of and what was involved with employing a person with a bipolar disorder. The decision used words such as “vulnerable,” “callous,” “a huge affront to Lane’s sense of self-worth.” Finally he wrote, “This was a serious violation of Lane’s right to be free from discrimination by an otherwise sophisticated employer that had every reason to know better.”

The lesson here is not that every employer must know everything about mental health issues, but that employers cannot plead complete ignorance and then use that lack of knowledge to make important employment judgments and decisions.  Lane may have been a bum, a good worker, or their top worker – but unfortunately, they let their fears and stereotypes decide his fate before they knew which kind of worker he was.

Using common sense, not just doctors notes.
In 2009 a B.C. Human Rights Tribunal adjudicator ruled that Kimberley Bertrend faced discrimination based on her mental disability of depression. Her employment was terminated by her employer Golder Associates Ltd.  One of the claims of the company was that they didn’t have medical evidence of any depression even though Bertrend stated that she felt she was suffering from depression.  In response to that the adjudicator wrote: “The lack of medical documentation at the time of disclosure or termination does not act as a shield against this complaint. Ms. Bertrend’s disclosure of depression was sufficient to trigger a duty to inquire on the part of Golder if it felt it needed medical confirmation.”

One of the things I’ve found in employment situations is that workplace leaders rely too much on formal and sometimes legal, determinations.  That might seem strange coming from a lawyer, but if we always just look to the legal or the formal, then don’t be surprised if everyone runs for their lawyers.  Mental health issues can be complicated and unless you’re a medical practitioner, don’t try to diagnose.  However, as the adjudicator said in the case of Bertrend, workplace leaders have a “duty” to inquire further.

Here are some tips for dealing with mental health in the workplace:

Allow people with mental health issues to work.  If we rely on our stereotypes, we’d be missing out on some very, very talented people.  Author Charles Dickens, Prime Minister Winston Churchill, artist Michelangelo, and Peanuts cartoonist Charles Schultz are just a few of the people who have experienced forms of mental illness.  If accommodating a person with a mental disability would create an undue hardship on the employer, then there won’t be a fit, but make sure people are given chances first.  It’s not just about avoiding law suits – it’s about tapping into a pool of the best people.

Ask questions.  This doesn’t mean prying, but if you suspect there is a mental health issue that is interfering with work, ask the person to explain what they can do, can’t do, and if there needs to be some change or accommodation.  If you’re not certain, then ask experts at work and/or seek advice from mental health associations across Canada.

Avoid too much stress.  Most of us can handle a certain amount of stress that comes with everyday life and work.  Some jobs are more stressful than others and leaders can hire people based on their abilities.  However, there are many documented cases where psychological stress is added to people when there’s no need for it.  Educate employees and workplace leaders about basic inter-personal techniques and if someone complains, listen.  Not everyone is just trying to slack off – a misconception we sometimes have.

Stop the abuse.  There’s not really a lot to say about this that isn’t obvious.  I guess what’s amazing is how many people in authority are able to get away with abusive behaviour because everyone is afraid of challenging them.  Abuse can trigger mental health issues.

Stephen Hammond B.A., LL.B., CSP is a professional speaker, trainer and author in the field of workplace harassment, discrimination and the changing face of Canada.  Stephen worked in labour relations, employee relations and law before consulting and speaking full time.  He is the author of Managing Human Rights at Work: 101 practical tips to prevent human rights disasters and Steps in the Rights Direction: 365 human rights celebrations and tragedies that inspired Canada and the world.?www.StephenHammond.ca.