This is Mental Health Awareness Week in the UK, so here are two brief and totally unrelated perspectives on mental health issues in the workplace.
First, a cautionary note for employers in relation to Employment Tribunal proceedings brought by sufferers of serious mental health issues. In Higgins – v – Home Office decided last week, Ms Higgins’ six year delay in starting Tribunal proceedings was ruled not necessarily fatal to her prospects of having them heard.
Ms Higgins was recognised by her employer as having mental health problems. On that basis, she had been allowed to retract a resignation which it understood as maybe not representing her true intentions. However, the next time she resigned the employer did not allow her to return and her employment ended in late December 2007. Ms Higgins brought her Tribunal claim on 27 January 2014. Surely this sort of delay would see it struck out?
It was agreed that from October 2007, before she resigned for the second time, Ms Higgins had been seriously unwell. She referred regularly to an application to MI5 which her employer was sure she had not made. Since then she had been convinced that a Mr Jones “from across the street from my home” was making disclosures of her personal information. “It is not known”, said the EAT “who Mr Jones is or why he knows anything of her employment details”.
Ms Higgins’ self-drafted ET1 was long and confused and included a non-admissible claim for compensation for her mother in looking after her. Coupling that with the very extended delay in lodging it, the Employment Judge took the view that the claim was an abuse of process and struck it out under Rule 12, a provision of the Employment Tribunal Rules that does not require the claimant to be given a chance to be heard first. Ms Higgins appealed against that strike-out.
The appeal revolved around whether the Judge should have used the power of summary disposal in Rule 12 (for abuses of process) or Rule 27 or 37 (little or no reasonable prospect of success, or it no longer being possible to have a fair hearing) which would have given Ms Higgins a chance to express her views first.
The EAT said that the Rule 12 order was “drastic” and “should only be made in the most plain and obvious cases. Any borderline cases, or cases lacking clarity, or where there is a muddle involving a litigant in person, should be disposed of under Rule 27“. In other words, Ms Higgins’ case should not have been struck out without the Judge first hearing any representations she wished to make. The matter has been sent back to the Employment Tribunal to give Ms Higgins that opportunity.
This will give Ms Higgins the ability to use medical evidence to demonstrate that it was not reasonable practicable for her to bring her claim before she did. A senior consultant psychiatrist has recorded his view that she was unfit for litigation for the whole of that six year period, and the EAT said that such evidence deserves a proper airing before any final ruling on reasonable practicability is made. No doubt the Home Office will counter with the difficulties which the time-lag causes for a fair hearing and the fact that Ms Higgins did briefly engage with solicitors in 2008 to show that she was up to it had she wanted.
Therefore this case has not yet said that mental health is a legitimate basis for a six year delay in starting Tribunal proceedings, but the point is clearly sustainable given the right medical evidence. “It is not every litigant who can produce evidence from a consultant psychiatrist to the effect that for a six year period she was not able to conduct litigation”, said the EAT, “so any application by her must hold out at least some hope of success”.
Second, the Mental Health Foundation (MHF), sponsors of this Awareness Week, are focusing for 2015 on mindfulness and more broadly, on the positive steps which people can take to increase their mental resilience.
Mindfulness helps people change the way they think and feel about their experiences – especially stressful ones – and is recommended by both the MHF and the National Institute for Healthcare and Excellence as a treatment for depression. It is a form of meditation which helps stress, boosts working memory and cuts out negatives and distractions to allow a better focus on what matters.
No employer is obliged to provide mindfulness training, but obtaining at least an outline awareness of its prospective benefits could well help you make the right recommendation if an appropriate mental health issue comes up in your workplace. There are plentiful providers of mindfulness training across the UK. The MHF provides a list which may be a good starting point (www.bemindful.co.uk/), plus a four-week online course (www.bemindfulonline.com) should you want to get into more detail.
