Directors at a company were experiencing ongoing performance and behavioural concerns relating to a senior employee. Their performance concerns had been ongoing for over a year and areas for improvement were noted in quarterly reviews. The employee was difficult to manage and was argumentative and disrespectful to the Directors in front of other staff members.

When challenged, the employee informed the Directors that she had been diagnosed as bi-polar. The employee was likely classed as disabled under the Discrimination (Jersey) Law,, therefore the company had to be careful not to discriminate because of disability or the employee’s behaviour relating to it. However, the company did still have the right to manage the employee’s conduct and performance.

Although some issues had been raised as part of the company’s reviews, there had not been any formal performance management process (as set out in their own policy). The company were advised that they needed to establish clear areas for improvement, and draw up a Performance Improvement Plan (PIP) with reasonable goals and timeframe for improvement. They should invite the employee to discuss this to agree the plan which would include support and training where necessary.

As part of the same process, the company were advised to ask the employee for further details of their illness, including how long they had been bi-polar and how it affected their work. Furthermore, to encourage the employee to clarify any reasonable adjustments that they wanted the employer to consider.

The Directors met with the employee to discuss their mental health and performance issues. As part of these discussions the company agreed to engage with a specialist advice charity that the employee had consulted in relation to potential reasonable adjustments.

The employee advised that they were unhappy with the prospect of a performance management process and that it was causing a lot of stress. The firm were advised to consider offering a Settlement Agreement as an alternative to the performance process. This would include a clean break termination of employment and waiver of employment rights, in consideration of making an agreed payment.

The company offered the employee a fair settlement sum in a safe way, which they agreed to accept. No further action was required.

If you have any concerns or need some advice, please feel free to reach out to us.