M J Taplin v Freeth’s LLP – Employee Misconduct and Mental Health
The relationship between employee misconduct and mental health disability is an area which employers often find particularly difficult to navigate. As a general proposition, having a mental health condition is not a protection against disciplinary sanctions. If that were the case employees with mental health conditions would be free to disregard workplace rules with little fear of consequence. But employers do have a legal duty to at least consider an employee’s condition within the context of a disciplinary process, as the law firm Freeth’s has found to its cost in a recent decision by Nottingham Employment Tribunal.
Mr Taplin was a managing partner at Freeth’s which is a national law firm based in Derby. He had enjoyed a successful career with the firm but by 2015 was showing signs of stress and anxiety. Colleagues told him ‘you need to slow down’ and in 2017 he took a 7-month sabbatical to recharge his batteries.
Unfortunately when he returned to work he was still exhibiting signs of being unwell, his behaviour was ‘hyper’ and had resulted in complaints from colleagues. In June 2018 he gave a presentation on behalf of the firm in which he made a string of offensive jokes likening African to cannibals, comparing the terms LGBTQ and GDPR and remarking about the size of his own penis. Following the conference he was placed under disciplinary suspension, ordered to make a public apology and attend a diversity training course. Shortly after this he resigned and claimed disability discrimination against the firm.
At first glance the decision may appear harsh. Mr Taplin had not actually been subject to a formal sanction and it could be argued that he had been treated leniently given that he had apparently caused offence and damaged the reputation of the firm.
The problem for the employer was that they had failed to take into account Mr Taplin’s mental health condition in making the decision. Colleagues stated that his comments were completely out of character and were clearly a reflection of the stress which he had been under. The Company had also failed to manage Mr Taplin’s condition over a long period of time. They were aware of his declining mental health but had failed to make adjustments to his role. They had failed to provide him with adequate support in the office and had ultimately allowed him to present at the conference at which it was admitted that it was likely to be a ‘car crash’.
The colossal 187-page judgement in the case stands on its own facts but should serve as a reminder to employers not to rush to judgement where mental health is involved. It is entirely possible to subject employees with mental health conditions to disciplinary processes. However employers do need to give proper consideration to the extent to which an employee’s mental health may have contributed to their conduct and the extent to which their own actions and inactions may have contributed to the situation. So in future employers should consider the relationship between employee misconduct and mental health before making decisions on situations.
This blog has been prepared by Mark Alaszewski, solicitor at didlaw.