Worker subjectively perceived adverse treatment, but didn't meet objective test
“Not every negative impact to an individual will be considered to be an adverse impact - there has to be a nexus between the negative impact and something that the employer did on an objective basis, rather than the subjective viewpoint of the employee.”
So says Tim Mitchell, a labour and employment lawyer at McLennan Ross in Calgary, after the Alberta Human Rights Tribunal dismissed a worker’s harassment claim in relation to her medical leave for a mental disability.
The worker was a teacher with the Edmonton Public School Board. A fellow teacher in her school harassed her during the 2016/2017 school year, so the worker made a complaint under the school board’s Respectful Working Environment Policy (RWP).
In August 2017, the school board informed the worker that her complaint had merit and the worker advised that she would return to work for the 2017/2018 school year. However, she discovered that the colleague who had harassed her would be teaching in the classroom next to hers.
On Oct. 4, the school board advised the worker that “appropriate action had been taken” to address the colleague’s conduct. No specifics were given, but the colleague apologized to her. However, the worker wasn’t satisfied.
The worker’s mental health deteriorated, prompting her to go on medical leave on Nov. 22.
Return-to-work discussions
The school board’s ability consultant phoned the worker on Nov. 28 to discuss her leave. The consultant had no knowledge of the harassment complaint as he was only concerned with discussing a possible return to work.
The worker felt that the consultant was dismissive to her and asked for information about her medications. She claimed that he also advised her to seek employment elsewhere and she should “get medicated and get back to work.” She characterized the phone call as harassing, she reacted emotionally, and her “brain started to shut down.”
The consultant’s version of the phone call was that he vetted medical information and sought clarification. He denied asking about specific medications or instructing the worker to take any. He also did not pressure her to return to work, he said.
The worker’s medical leave was approved under the school board’s short-term sick leave policy.
Stress from performance warnings was not a mental disability requiring accommodation, the BC Human Rights Tribunal ruled.
Experts, not generalists
The school board took the right approach by engaging the worker with people who were subject matter experts in disability management, says Mitchell.
“They didn't have their labour relations or HR people attempt to contact [the worker] to adjudicate a claim, but rather they had a specialized department with individuals who were trained in privacy law and understood what could and could not be asked to try and reintegrate this individual back into the workplace,” he says. “Using those subject matter experts in adjudicating the return to work and not just having a generalist do it, ensuring that they ask the right questions, ultimately resulted in the decision that those [conversations] were not harassment or an adverse impact to the [worker’s] mental disability.”
In December, the worker emailed the consultant expressing concern about his approach during the phone call and requesting additional therapy benefits. A few days later, she expressed her concerns to the staff relations representative and again requested additional therapy.
They continued to communicate through January 2018, but the worker was feeling financial pressure, which negatively impacted her mental health.
“As an employer, you always want to carefully consider why you are communicating with an employee who is off work sick and under the care of a physician,” he says. “Some of the other tools open to them would have been requesting an independent medical examination rather than using the ability specialist, who was an employee of the school board.”
Employers have a duty to inquire when they suspect an employee has a mental illness that may be affecting their performance, according to lawyers.
Meeting didn’t go well
On Jan. 23, the school board held a meeting with the worker to discuss her eventual return to work. The worker claimed that she wasn’t well enough and it was adverse treatment to ask her to attend, but she came to the meeting.
The worker was aggressive and confronted both the ability consultant and the staff relations representative. She later walked out and eventually went on long-term disability leave. The school board approved the additional therapy sessions, but the worker didn’t use them.
The long-term disability benefits were terminated in December 2019 and the worker resigned from her employment.
The worker filed a complaint alleging that the school board discriminated against her on the ground of mental disability. She said that phone calls during her leave and the return-to-work meeting constituted adverse impacts that worsened her disability.
The tribunal agreed that the worker’s mental disability was a protected characteristic, which met the first step of the test for prima facie discrimination. However, it found that the worker failed to meet the second step of the test – proving an adverse impact.
Employers must be careful managing mental health issues to ensure a safe environment for employees to disclose mental disabilities, says a lawyer.
Credibility issues
The tribunal had some trouble with the worker’s credibility relating to the phone call with the ability consultant, as she admitted that her brain shut down. She was inconsistent on some of her claims, and it was notable that she didn’t make a privacy complaint, said the tribunal.
The consultant was consistent in his account of the phone call and was not invested in the outcome of the worker’s case, so he had no reason to pressure the worker. This was supported by the fact that the school board approved her medical leave and didn’t seek further medical information, the tribunal said.
The tribunal also found the staff relations representative to be credible and there was no reason to believe her calls weren’t professional.
The tribunal noted that an adverse impact must be something done by the employer that is “objectively objectionable.” In this case, the phone call was not objectively harassing – the worker only perceived it to be, partly because of her mental health issues, the tribunal said.
“The chief commissioner [of the tribunal] did a really nice job of deep diving in the case law on this issue and ultimately found that in order to show an adverse impact, you have to show that on an objective basis, rather than a subjective basis, that there was some harm caused by the conduct in question,” says Mitchell.
There was also no evidence that any of the communications constituted harassment or adverse treatment from the school board, said the tribunal. The worker had concerns and they listened to them during her approved medical leave. The worker’s mental health continued to deteriorate, but this was because of her financial concerns and emotional fragility, the tribunal said.
Employers should approach accommodation for mental disabilities differently than for physical disabilities, according to employment lawyers.
No objective adverse impact
As for the return-to-work meeting, the school board’s intention was to work collaboratively with the worker, the tribunal found. The board eventually approved the additional therapy sessions that the worker had requested along with her disability leaves. However, the worker’s fragile emotional state made her unable to collaborate and her mental health affected her perception of the school board’s actions - which objectively were not adverse impacts, said the tribunal.
“The correct test is not the subjective intent of the individual, but rather it's an objective basis, because that's what the [prima facie discrimination test] requires,” says Mitchell. “And what the ability consultant did and said in the meeting was objectively not harmful - it was an attempt to find out why and what were the barriers to returning to work.”
The tribunal found that the test for discrimination was not met and dismissed the complaint.
Mitchell says it’s good to have clarity over the objective requirement for the adverse impact element of the discrimination test, but employers must still be careful in situations like this.
“At the end of the day, I think that many conversations with a mentally ill employee on a medical leave should be questioned as to whether or not they are required,” he says. “If you are going to have them and they are needed for a particular reason, make sure you have individuals that understand privacy rights in terms of what information you can request, and are you engaged with the requisite humility and regard to the nature of the illness the employee is dealing with?”
“While this is a good decision for employers, I think we should all be careful not to say it's carte blanche acceptance of having difficult conversations with employees, because the chief commissioner was also clear to say, not in all circumstances will this be considered to be non-discriminatory.”
See Mitchell v. Edmonton Public School Board, 2023 AHRC 16.
