This is the first in a series of posts looking at questions around identifying and supporting employees with mental health issues, when an illness becomes a disability and the interplay between business realities and employment law.
In a banner year for mental health awareness, the profile of the issue rose last week to new heights. First of all Glenn Close generated a number of column inches in support of ‘Time to Change’, an anti-stigma campaign run jointly by the charities MIND and Rethink Mental Illness to encourage people to be open about their illness, both at home and at work. This lets people know that they do not have to suffer in silence, which can increase feelings of stress and isolation , leading to a downward spiral that makes it harder for them to cope with their illness.
Two of the UK’s largest supermarkets were recently found to have included in their Halloween ranges costumes subtly named ‘Mental Patient’ and ‘Psycho Ward’. The costumes featured blood spatters, a straitjacket, a cleaver and a prison jump suit. Indeed, the sales puff for the ‘mental patient’ costume on ASDA’s website stated “Everyone will be running away from you in fear in this mental patient fancy dress costume… it’s a terrifying Halloween option.” Lovely.
Almost immediately, a huge number of people took to Twitter and other of social networks, challenging the impression that these costumes gave of people with mental illness. The backlash was so severe across both traditional and social media that both ASDA and Tesco apologised, withdrew the costumes and donated £25,000 to Time to Change.
On the same day, mental health also became a news item in the US, when Hewlett Packard fired The Experts, an IT contractor, for failing to respond appropriately to concerns regarding the mental health of one of its employees. The employee in question, Aaron Alexis, was himself a news item when he carried out a shooting attack on a US Naval institution where he was working, killing 4 people before being killed himself. Whilst what The Experts knew about Alexis’ mental health are unclear, it does seem that he had made no secret there of his belief that he was being controlled by “low frequency radio waves”. Presumably, HP’s argument was that The Experts should have been aware of this and should have investigated, primarily for the sake of Alexis’ own well-being but also due to the potential (and, sadly, actual) effects of his illness on other people.
Mental health is a complicated and difficult area for employers to deal with. Under UK law, if the Experts knew, or ought to have known, that Alexis was suffering from mental health issues that made him a danger to others, then the families of those killed and injured could bring a claim. They may well do so in the US (and it is not inconceivable that HP’s termination of The Experts was an attempt to demonstrate that any liability rests solely with The Experts, rather than the deeper-pocketed HP). Such a claim would be based on the argument that The Experts owed a duty of care to Alexis, but also to the business (the US Navy) to which they provided his services, and by extension and implication, to US Navy employees.
The situation for ASDA/ Tesco is obviously much less serious, both in terms of financial losses and negative PR. However there are lessons for employers here too – imagine if a member of your staff were to refer to someone (whether outside the team or otherwise) as ‘mental’ or ‘psycho’. A team member with a mental illness would potentially have a claim for harassment as a result. We will look at this in more detail in later posts.
