Balance between encouraging office gossip and getting information about employee's disability
Question: Is there a duty to accommodate if an employer learns of an employee’s addiction through office gossip with no proof that it’s true? We don’t approve of gossip and feel acknowledging it would encourage more gossip in the workplace.
Answer: What is the employer's duty when notice of an employee's substance dependency comes to its attention through workplace gossip? This is a delicate issue. On the one hand, an employer does not want to be seen as promoting loose talk amongst employees of their colleagues' personal issues. On the other hand, an employer should not simply turn a blind eye to reliable information that an employee is suffering from a debilitating addiction that could affect work performance. An employer does so at its own risk.
Generally speaking, in order to trigger an employer's duty to accommodate, it is incumbent on an employee to first establish that she has a condition requiring accommodation. However, where there is reason to suspect a medical condition may be impacting an employee’s ability to work, the employer's failure to make inquiries into these suspicions may constitute discrimination. This duty to inquire was recently addressed by the British Columbia Human Rights Tribunal in Mackenzie v. Jace Holdings Ltd.
The employer's duty to inquire can be especially pertinent in cases of strange behaviour suggesting mental disability. For example, in Canada Safeway and UFCW, Local 401 (1992), an employer's argument of dismissal for poor performance was rejected by an arbitrator on the grounds that the employer should have investigated whether the employee's performance deficiencies were rooted in a mental illness. The arbitrator's decision was affirmed by the Alberta Court of Appeal.
In the situation at issue, the employer should not assume it will be relieved of its duty to inquire merely because it learned of the employee's condition second-hand. An employer turning a deaf ear to credible information that an employee suffers from a disability leaves itself vulnerable to a finding of failure to accommodate in the event of a grievance or human rights complaint.
In these circumstances, the employer also seems concerned about the secondary issue of workplace gossip and may be especially alarmed if it is pervasive. The issue might be effectively addressed in many such cases on an informal basis. A simple conversation may be enough to put an end to the loose talk. There can be situations, though, where workplace gossip is serious enough to merit discipline, especially where the issues being discussed are of a sensitive or hurtful nature or where the scuttlebutt is contributing to a poisoned work environment. Employees should be encouraged to be discreet in bringing personal issues affecting the workplace to the attention of management.
For more information see:
• Mackenzie v. Jace Holdings Ltd., 2012 CarswellBC 3320 (B.C. Human Rights Trib.).
• Canada Safeway and UFCW, Local 401 (1992), 26 LAC (4th) 409 (B.C. Arb.).
