By

Bob Acton, Ph.D., R.Psych.,(1) LPI; Merv Gilbert, Ph.D.,(2) & Jessica Figley, BA, BSW, RSW (3)

When complaints of workplace misconduct occur, it is not uncommon for someone to raise ‘mental illness’ as a complicating factor. It may be an issue for the complainant, the respondent, or bystanders. This mental health issue may already be known when the complaint arises, may come up during an investigation, or may emerge as a result of the alleged misconduct. Each of these scenarios requires a measured response. This can be a challenge for any Human Resource (HR) professional to navigate. Consider the case below.

After an employee complained, ABC Ltd. hired an independent harassment investigator who determined that Susan was inappropriately harassed by her co-workers because of her weight. She was teased, laughed at, and made the butt of jokes. It should be pointed out that Susan is highly respected at her work. She is one of the company’s top editors to deal with complex publishing issues.

Susan’s colleagues did not think they were harassing her; they just thought it was all in good fun to tease her. One of the colleagues accused of harassment revealed during the investigation that he had been psychologically abused as a child by both parents and siblings. Susan was quite upset by this experience and considered finding another job even though it would be very difficult in her community. She filed a complaint and then went off work on medical leave, which was supported by her doctor. Susan’s doctor reported that she developed significant depression as a result of her treatment by the co-workers and referred her to a counsellor.

Susan wants to return to work but she’s concerned about working with her co-workers. Management wants to address the situation but can’t terminate the rest of the editorial team, all of whom engaged in the harassment. Also, the employer has not yet decided if they will impose discipline, what this discipline might be, or even what solutions they can bring to the situation. The company’s president has expressed that his top goal is to ensure that the harassment is not repeated.

Mental Health vs. Mental Distress vs. Mental Illness:

It is critical to be clear about the difference between these terms. Positive mental health includes the ability to be engaged, productive and ‘present’ in one’s work and to cope successfully with the inevitable challenges that arise. It recognizes the range of thoughts, feelings and behaviours that are part of being human, some of which can be quite distressing, but includes an ability to manage these effectively. It means more than the absence of significant distress or symptoms.(4)

In situations involving misconduct allegations, many parties will likely express strong emotions such as anger, fear or confusion. While this is understandable, strong emotions likely have minimal bearing on the determination of misconduct and do not mean that someone has a diagnosed mental illness.

Terms such as ‘mental illness’ and ‘mental distress’ are not synonymous and, when misused, can lead to further confusion. For example, people can refer to themselves as ‘depressed’ but they may only mean they are sad or struggling to manage a situation (experiencing mental distress), but it may not mean that they have been diagnosed with a disorder such as Major Depressive Disorder (a mental illness). Other examples include people describing themselves or others as having ‘ADD’ when they are a little impulsive or inattentive or saying they are ‘bipolar’ when they may be emotionally reactive to challenging situations.

Mental distress is when a person typically experiences high stress and unpleasant emotions. It is a normal part of living associated with dealing with the problems and challenges of life. A diagnosis of a mental illness or disorder can only be made by a regulated health professional on the basis of a proper assessment of the individual’s reported symptoms. The term mental illness includes a wide range of conditions that affect how people feel, think and behave. These may be transient or chronic and can significantly impact workplace functioning. HR professionals should consider a person to be experiencing a mental illness when they are informed that a health professional has made a formal diagnosis.

Managing Mental Distress During Misconduct Investigations

The absence of a diagnosed mental illness does not mean that mental distress should be dismissed as trivial. There can be significant emotional implications for both the individual and the workplace during an investigation. Understanding how people are coping with difficulties is essential, as difficulty coping can contribute to lower performance while at work (i.e., presenteeism) or increased interpersonal problems.

There are a few steps that the HR professional can take to assist a distressed individual, whether they are the target or the respondent. It is important to emphasize that this can be challenging and the temptation may be to ignore it and hope the problem will go away. However, this is unlikely, and delay may well make the situation worse. The first step is to be empathetic and to listen to the person describe their feelings and experiences (e.g., “I’m upset because…”). People often need to tell their story, and this can be an excellent way to help a person reduce the distress they are experiencing. You may not need to take immediate action or respond to the individual’s proposed solutions, but being kind and demonstrating compassion is an excellent first step.

Here are some steps you can take to help:

  1. Listen and reflect back what the person is telling you. You don’t have to agree but should demonstrate that you understand and care.
  2. Suggest the person contact your company’s employee assistance program (EAP), if you have one. If an EAP is not available, suggest the person seek consultation from their family physician or a local counselling or crisis centre. Have contact information for those centres available and provide it to your employees.
  3. If the employee gives you permission and it is appropriate to do so, you can inform his or her manager or supervisor that the individual is struggling and suggest some strategies that the manager could employ to help. Remember that the manager may need some guidance about how to effectively support an employee in this context.
  4. Explain the process that will be followed in your organization’s response to allegations of misconduct. Knowing what to expect can effectively settle a person. When a person is upset, they may not remember what you said to them; therefore, provide them with the written policy or procedure which they can reference later.
  5. Arrange a check-in meeting in the near future to see how they are doing.
  6. Allowing a support person to be present in meetings in which sensitive issues (such as possible harassment in the workplace) will be discussed is an approach that may be helpful for all employees. In unionized environments, the support person may be the individual’s union representative. However, ensure that the support person understands their role (e.g., they are not there to answer questions) and that all parties agree to this role.

Managing Mental Illness During Misconduct Investigations

If either the individual suspected of misconduct or the person(s) targeted have a diagnosed mental illness, then your response likely needs to be modified. The HR professional is unlikely to possess details of the illness and is probably unable to access them, given privacy and confidentiality requirements. One exception may occur if one of the parties has documentation from his or her healthcare provider indicating a mental illness.

When such documentation is provided by a healthcare provider, it is often vague and may refer to causal factors, such as ‘workplace stress,’ with little information concerning impact, treatment, or outcome. Information of this nature is inadequate for most disability claims and the insurer, and possibly employer representatives, can request a specific diagnosis, treatment plan and prognosis, only if it is essential for the investigation.

If adequate information is available to the HR professional, the next question is whether this diagnosis and the associated symptoms are relevant to the complaint under investigation.

It is possible that the healthcare provider of the alleged perpetrator may express the opinion that the behaviour under investigation is the result of their diagnosis. While anyone’s health condition may well play a role in their behaviour, there are very few health conditions that would discount an individual’s responsibility for their own behaviour. Exceptions may include severe conditions such as psychosis or dementia, which are rare in a workplace context.

Conversely, a healthcare provider may indicate that the recipient of the misconduct has a mental illness as a result of the misconduct. Once again, there are very few mental health conditions that can be definitively attributed to a workplace incident. Exceptions include Post Traumatic Stress Disorder (PTSD). Existing conditions, however, can be exacerbated by involvement in workplace misconduct. Interestingly, some provincial workers’ compensation boards have introduced legislation including workplace bullying and harassment as a compensable injury, but only if the target has a diagnosed disorder. Thus, while it is compassionate and respectful to consider the presence of a mental health condition in either party, this is unlikely to be causative. Nevertheless, proving causation in this context is very complicated.

Both large and small organizations are held to the same workplace standards (e.g., Occupational Health and Safety guidelines) but small and medium-sized businesses likely have fewer institutional supports such as a legal team and disability management experts. While this places the small organization at a disadvantage, engaging an external consultant can be an effective and cost-efficient strategy in dealing with individual situations.

However, a word of caution is important here. When considering if your employee may have a mental illness, don’t simply accept their word for it. Make sure you receive appropriate documentation from a regulated provider, (i.e. physician or psychologist) and don’t just accept a note scratched on a prescription pad. You may find it helpful to create a template for an appropriate form for the health provider to fill out, in order to standardize the process.

The Investigation and the Health Agenda

From a legal perspective, both agendas must be followed: the health agenda and the investigative agenda. Employees must be supported appropriately in their mental health, and thus employers need to follow all the rules and guidelines, such as privacy and collective agreements, to support employees in returning to work. It is also essential to follow through with investigations as best as possible.

If either the complainant or respondent is off work on medical leave, then the investigator must continue on their path to complete the investigation as best as possible. If the allegations are severe and pose potential risks for others, the employer is obligated to pursue the investigation by interviewing other recipients and observers of the alleged behaviour. If the complaint is generic, such as “women experience discrimination” then conducting a climate survey may be more appropriate and much less intimidating than an investigation.

If it is critical to speak to either party but they are off work, then the investigation can be delayed until their return. Alternatively, after legal consultation, it may be possible to engage the individual’s physician to determine if conditions could be arranged that would allow the individual to share their information with an investigator.

Once the individual returns to work, the investigation can proceed and be concluded.

Can Mental Distress or Mental Illness Mitigate Responsibility in Workplace Misconduct?

One of the themes in our series of articles is that we need to be thoughtful and kind to each other at work. Taking this approach, in part, contributes to a psychologically healthy workplace and a more functional and profitable one as well. Having a psychologically healthy workplace is thus a business imperative.

“But if I’m kind to someone, doesn’t that mitigate the responsibility they may have?”

Individuals can and need to be held accountable for their behaviour at work, regardless of their mental status. As a community of individuals, all employees have the right to be treated with respect and to feel safe in their workplace. While mental distress and mental illness are considerations in any given allegation, one employee’s safety or experience should not be discounted by “mitigating” circumstances in the life of the other.

Accountability is not a punitive term nor is the act of an employer holding someone accountable inconsistent with an employer acting with kindness and respect. As the central actor in a psychologically healthy workplace, employers have a duty to balance the circumstances and needs of all employees. This duty requires an employer to be flexible and responsive to the particulars of an allegation and to act empathetically. This duty is not altered where mental distress or mental illness are disclosed.

There is no such thing as mitigation in misconduct, but context can be built around the incident, and specific approaches can be taken during and following the investigation to achieve the best possible resolution of the complaint.

The message for consultants and employers is simply that mental distress and mental illness cannot be used as a shield, but they do provide a foundation for answering the question, “So, what do we do next?” Individuals do make mistakes, and there is also the element of context which should be considered, but accountability for inappropriate behaviour must follow. Doing otherwise may be perceived as neglectful or improper.

Finding Solutions Surrounding Workplace Misconduct

Finding solutions post-investigation is critical and should be a mandatory component of an investigation process. Conducting an investigation, without some post-investigation recovery is incomplete and unwise, as significant workplace disruption occurs before, during and after a complaint and investigation.

Whether or not mental illness is involved, there are limits to what can be accomplished by a given outcome or solution, including accommodation. In remaining cognizant of appropriate legislation, legal obligations, and best practices, HR professionals can ensure that solutions are made to the full extent of those provisions. As discussed above, there are very few health conditions that excuse individuals from (or mitigate) taking full responsibility for actions in a normal context.

What Happened to Susan?

In the case of our case example, a number of solutions were initiated and found to positively impact the situation. Each of the respondents who harassed Susan were reprimanded and letters were placed on their employment file, with accompanying cautions to not engage in harassing behaviour again with specific consequences outlined should they not follow expectations. Mistakes were made but consequences were required so that the actions of some employees would not be repeated.

Susan was provided with counselling to overcome her mental illness, with the cost borne by the company.

A mandatory education program was initiated for all company employees about workplace harassment, the consequences for individuals, and company policies and procedures for continuing workplace psychological health. Finally, a restorative workplace intervention took place among the various players including Susan, during which Susan received meaningful apologies. She returned to work.

The company and those found guilty were held accountable and company policies and procedures were modified to reduce risk and improve working relationships. All people were treated well but held accountable.

In summary, HR professionals can effectively incorporate mental distress and illness into both the investigation and solutions for workplace misconduct as well as follow appropriate legislation and legal precedents. Adding in the element of mental health to the workplace misconduct context makes it more complex, but it is manageable with the tools outlined herein.

 

1. Dr. Acton is the President of Falcongate Ltd., a consulting firm with expertise in workplace misconduct investigations and he is an Adjunct Clinical Faculty at the University of Calgary.

2. Dr. Gilbert is a partner in the firm Psychological Health and Safety and an Adjunct Professor at Simon Fraser University.

3. Ms. Figley is a student in the College of Law at the University of Saskatchewan.

4. Acton, R. (2018) Mental Health (Illness), Allegations of Misconduct, and Workplace Investigations,https://www.cphrab.ca/mental-health-illness-allegations-misconduct-and-workplace-investigations

 

Photo by Mimi Thian on Unsplash