‘When resignations are done during or around the time of mental health-related leaves or accommodation… that’s a red flag’
When an employee with a history of burnout decides to hand in a hasty resignation, Canadian employers can no longer assume the decision is purely voluntary – a recent Alberta human rights decision shows that the duty to inquire extends all the way to the resignation stage.
The tribunal found that the end of the employment relationship, although it occurred through a voluntary resignation, was an adverse impact linked to the worker’s mental disability, and the employer reasonably ought to have known that.
According to employment lawyer Shannon Sproule of Turnpenney Milne, the duty to inquire and accommodate around employee resignations is a “tricky” area that employers can be hesitant to navigate, often due to concerns around employee privacy.
“There are still gaps in terms of understanding the duty to inquire,” she says.
“Sometimes, it's hesitancy for fear of overstepping, and other times, it’s not taking the reasonable steps that the employer ought to know are required.”
‘Reasonably ought to have known’ triggers duty to inquire
In this case, a physiotherapist who worked for the employer for about 16 years had diagnosed mental disorders including Bipolar 2 Disorder. The decision describes the employee’s “deteriorating” mental health around 2016, involving discrimination allegations and claims of a toxic work environment.
The employee’s psychiatrist had requested a leave for burnout. That leave was delayed, and the employee abruptly resigned on the last day before the leave was scheduled to begin.
At that point, the tribunal noted, the employer “could have easily paused and inquired into the complainant’s mental health and asked for medical information depending on what the complainant advised in that regard. I find it failed to do so.”
It is these types of factors that contribute to conditions that could trigger the duty to inquire, Sproule explains: demonstrated signs of flagging mental health that are known to the employer.
“The employer had enough information about the employee's health, particularly the employee's mental health at the time, to know that it needed to inquire before accepting the resignation,” she says.
“When resignations are done during or around the time of mental health-related leaves or accommodation … that’s a red flag.”
‘Hastily’ written resignation letters
The manner of the resignation itself could be another red flag, she adds.
“Hastily” made decisions – in this case clearly indicated by its connection to a burnout-related leave – are a strong indication that the duty to inquire is in play.
In certain contexts, even the appearance of a resignation letter can be a sign that something is going on that warrants inquiry. In the Volpi case, the employee’s resignation letter was inappropriately short and contained spelling errors – small but significant clues, says Sproule.
“Taken within the context of what the employer knows about the health of the employee, that’s another red flag signaling that that decision may be related to mental health symptoms,” she says.
“It was viewed as a factor that the employer ought to have known, [it] pointed towards the possibility that the employee needed accommodation rather than the employer accepting the resignation.”
What the duty to inquire really requires
The Volpi decision also clarifies what does not meet the duty to inquire, Sproule notes. When the physiotherapist handed over his resignation letter, his manager asked if there was anything he could do to change the employee’s mind, but then quickly accepted the resignation.
The tribunal found that approach “unduly minimize[d] the duty to inquire” and that the employer should have done more, including refusing to accept the resignation right away, seeking more information, or discussing accommodation options.
The error was in putting the question of accommodation on to the employee to address, Sproule explains: “Putting the onus on the employee to say what they need.”
Instead, she says, the duty to inquire is about a structured, sensitive process.
“The duty to inquire itself could involve meeting with the person, letting them know that the company has the accommodation policy in place, asking them if there’s anything that they need at this time, informing them how the accommodation process itself works,” Sproule explains.
“An inquiry is a sensitive and nuanced process, but essentially, the best practice would be to let the employee know about the accommodation process itself and ask the employee to let the company know if they have any accommodation needs.”
‘Pause and wait’ can be enough
The Alberta tribunal criticized the employer for failing to recognize how its delayed response to a leave request and its quick acceptance of a clearly mental health-motivated resignation contributed to the adverse impact.
Sproule says every organization should have clear policies around accommodations that include processes around resignations and ensuring management is trained sufficiently.
Employers don’t need to have the duty to inquire embedded into resignation procedures, she says: “It’s more about education and duty to accommodate policies. Ensuring that if this happens, the company knows how to react appropriately in the circumstance.”
For HR leaders, training managers on red flags and escalation pathways is critical. Sproule emphasizes the power of the pause, stressing that just refusing to accept a resignation the day that it’s tendered can be enough to fulfill the duty to inquire.
“In this case, the decision-maker noted that the duty to inquire would have also included the employer pausing,” she says.
“The employer can consider pausing before accepting or confirming the resignation, to give the employee some time, and to make sure the employee isn't rushed into the resignation.”
