What Are The Legal Risks Of Choosing A ‘Humane’ Path When Managing Performance Of Someone With A Mental Health Problem?
I recently presented as a speaker at an ‘Employment Law for HR Managers’ Masterclass, held in Sydney. It was quite an interesting experience. First, because the focus was on employment law, whereas my specialty as a psychologist is in mental health, and also because I was engaged as a panelist, alongside three lawyers. It did make sense though – they were looking for the ‘human’ angle, wanting to balance legal considerations with what is best for the person experiencing mental health problems.
So that presented the first challenge – the legally ‘right’ thing to do is so often pitted against the morally ‘right’ thing, or at least the ‘nice’, person centred way of doing things. In fact, one of the questions asked directly reflected this:
“What are the legal risks of choosing a ‘humane’ path, when managing the performance of someone with a mental health problem?”
At that moment I thought one of the lawyers in the room was going to stand up and say “I object your honour, that question is leading the witness!” It was, after all, a leading question that makes the assumption that the humane approach may be somewhat riskier than the non-humane approach. But no, no one objected. Shame. In my opinion, a humane path reduces the legal risks, not increases it!
And let me back that up with evidence. Studies from the medical field show that patients are more likely to sue their doctor, even if the doctor didn’t actually do anything technically wrong, if their bedside manner was poor. And, on the flip side, people are less likely to sue a doctor who did make a clinical mistake, if they had a good bedside manner, showed respect, and listened to the person’s concerns. It seems we just don’t want to take legal action if the person was ‘nice!’.
Apply this back in the workplace to performance management. A ‘humane path’, a path which is compassionate towards the person, is much less likely to end in legal problems,.
But what this question reveals to me, and what became apparent at the masterclass, was that we seem to have different ideas about what a humane path looks like.
There was an underlying assumption that a humane path meant not following through on the performance management process, stalling and delaying taking any action or follow through. It’s almost as if ‘humane’ was akin to not upsetting the person at all.
I would argue that that is actually not very humane at all. You see, sometimes as managers, we think, if we’re a bit more lenient, or we make allowances for the person, they’ll appreciate it and we won’t have to face a disgruntled employee. Now I’m all for having flexibility. Flexibility is key, but when we’re talking about things which really bend the line on what’s acceptable, that’s something else. And in fact, what happens when you deviate from the agreed fair performance management process, is that it creates all sorts of confusion for the person. When a person is experiencing a mental health problem, often it can be really hard to think clearly, or to remember details, people describe it like a ‘fog’ in their thinking. That’s just one of the reasons why, for their sake, it is really important to stick to the process. Not only that, but think about what messages are being sent to the rest of the team by accepting poor behaviour or performance from one person? Here’s just a few ideas: compassion is compromise, the leader shows favouritism, lower standards are ok, the leader is weak and can’t stick to what they said, maybe if I acted like that… you see where I’m headed. What about the message being sent to the person? The person could be hearing a number of things: ie ‘if you are anxious, depressed or stressed, you can’t cope with the job’
And yes, sometimes, in extreme cases, sticking to process will mean eventually letting a person go. If they are simply not able to perform the inherent requirements of the job, or they consistently breach conduct requirements, then it can be the best thing for everyone – the business of course, but also for them, to be let go. I’ve seen way too many organisations hold jobs open for people for way too long. They’re trying to be kind, but in fact the person would be much better off in a completely different field or industry.
So what does ‘humane’ mean then? It means being compassionate in your communication towards the person, while you stick to the process! It means respecting the person, the human, even if you don’t respect their behaviour. It means allowing them dignity through the process and ensuring the process is dignified. And THAT can actually be life changing for people.