October 15, 2019

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The earth is doomed, and other reasons not to send an employee on leave (UK)

The New South Wales Civil and Administrative Tribunal in Australia last year awarded an employee AU$20,000 in compensation for pain and suffering where her employer forced her onto “personal leave” for assumed mental illness based on her discussion of conspiracy theories in the workplace. Though an Australian case, it contains valid lessons for UK employers too.

In Stefanac v Secretary, Department of Family and Community Services the employee had a number of conversations with colleagues in which she advanced various theories, including that the earth was flat; large meteors were about to hit the globe, which was being covered up by government; and fallen angels walked amongst us here on earth to cause confusion.

Based on these conversations, the employer was concerned about Ms Stefanac’s mental wellbeing, and hence her ability to work with its vulnerable clients. She was directed to take paid personal leave until she received medical clearance to return to work.

Ms Stefanac alleged that she was discriminated against on grounds of assumed disability. The Tribunal agreed and said one of the reasons for sending Ms Stefanac on personal leave was because the employer thought she had a mental illness based on the conspiracy theories, i.e. a disability. The Tribunal found this was direct discrimination under the applicable legislation because, even though Ms Stefanac suffered no financial loss, the instruction was differential treatment and – at very least – injured her feelings and therefore was to her detriment. She said that the direction to stay at home had contributed materially to her anxiety/depressive disorder, hence the size of the award.

The employer tried to rely on its safety and health policies and the applicable Industrial Award, which allowed the employer to direct a staff member to take personal leave if it was satisfied that, due to illness, they posed a risk to the health and safety of other employees, clients or members of the public. The Tribunal dismissed this argument on the basis that the applicable anti-discrimination legislation did not allow employers to rely on compliance with internal policies and Industrial Awards as a defence to discrimination or as part of the “objective circumstances” to be considered when determining whether the direction was “differential treatment”. Their entitlement to take that step in some circumstances did not mean it was appropriate in all.

However, this is less clear-cut than it sounds, since it does not draw any distinction between the holding of beliefs which others may think weird and the public espousing of them. What I don’t know doesn’t hurt me but if as employer I hear someone responsible for vulnerable clients say things which to me and a majority of others would indicate a degree of disconnection from reality, am I not entitled to be concerned that that disconnect could affect his/her judgement in other respects too? And as a client or a relative of a client, how am I going to feel if something does go wrong and it turns out that the responsible employer knew full well that the individual was harbouring these beliefs?

It is of course an absolute fallacy to suggest that as a matter of fact that people with, um, unusual views or those with genuine mental health conditions are particularly prone to workplace misconduct, but that is not necessarily how the Court of Public Opinion would see it in retrospect. It is also clearly not the case that any divergence in views between you and your employee automatically makes him a mental health risk, but surely there must come a point where the employer is entitled to take steps to reassure itself of this.

Similarly the case brushes over the lack of any practical difference between whether certain out-there beliefs actually pose a risk and whether the public or one’s client-base may nonetheless think they do.

The case provides a lesson to employers everywhere (UK too) not to act hastily when confronted with “unusual” beliefs which, though superficially challenging, do not impact employees’ ability to perform the inherent requirements of their role.   Take a moment to consider first the evidence of risk (both relating to that particular employee and anything statistical found on Google or other obvious sources). Consider asking the employee not to continue those conversations, especially if they are unsettling and/or upsetting others, and whether you do have any tangible examples of nervous colleague or client feedback.   Consider also the detailed nature of the challenging beliefs voiced by the employee. Might they be seen as personally threatening or discriminatory to the listener, for example, or as evidencing support for overtly unattractive behaviours by others?

This was not such a case, in that you either believe the world is round or you don’t, and while our planet being destroyed by a giant meteor is indeed a depressing prospect (I’ve just had the kitchen done), I am not sure that knowing it’s coming is of any real benefit in the circumstances. This was relatively easy stuff for the employer to ignore, but that may not be so in all these cases.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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