Labour and Employment Law Blog

It’s hard for me to take off the labour and employment lawyer hat. I view everything through a certain lens. 

Even as an avid Royal watcher, I was initially quite critical of Prince Harry and thought of him as a disgruntled employee who had quit his job, yet strangely thought he should retain his salary and benefits. Then, as I read his memoir “Spare” I considered what an employer’s obligations would have been in an ordinary workplace with respect to Harry’s mental health issues.

Harry describes himself as “alternating between periods of extremely debilitating lethargy and terrifying panic attacks.”

“My official life consisted of going out in public, engaging in discussions, debates and giving interviews, and suddenly I found myself almost incapable of doing these basic functions,” he says. He goes on in his book to self-diagnose himself with post-traumatic stress disorder, which came on after his return from Afghanistan in 2013.

Had Harry been an ordinary employee exhibiting these symptoms at work, it may have triggered the duty to inquire on the part of his employer.

The duty to inquire exists when an employer suspects that an employee’s work performance may be impacted by a mental illness. It is a positive legal obligation on employers to say something if an employee exhibits behaviour that may be connected to a disability. This may manifest itself as poor attendance, low productivity, emotional outbursts or a failure to emotionally connect with others. 

The employer’s obligation in this regard is only triggered where the behaviour is such that the employer ought to have known or suspected that mental health issues could be the cause. Before disciplining or terminating an employee in these circumstances the employer has the duty to investigate whether a disability could be a factor. If so, then the obligation is to consider whether the disability can be accommodated to the point of undue hardship.

In Senyk v. WFG Agency Network (BC) Inc (No 2), (2008) BCHRT 376, the BC Human Rights Tribunal stated that the duty to inquire is triggered when:

1. An employee requests accommodation without providing details regarding the general nature of the disability and disability-related needs;
2. An employee’s behavior is so out of line with social norms that the employer ought to have inquired about the existence of a disability or the need for accommodation;
3. An employee’s job performance or attendance is so poor that the employer ought to have inquired about the existence of a disability or the need for accommodation;
4. The employer is considering disciplining or terminating an employee but the behavior or performance is such that it raises the possibility of a disability requiring accommodation; and
5. An employee expresses a desire to return to work following a disability-related absence.

This is, no doubt, a legally complex area. Some employees are just difficult people and there is no disability at issue. For example, Downer v. Alaska Highway Autobody and others (2011) BCHRT 114, involved a case where the complainant’s employment had been terminated due to his “uncontrollable anger.” The Tribunal found that there was nothing in his behavior that was so far from societal or workplace norms as to give rise to a duty to inquire, nor had any requests for accommodation been made.

More recently, in Cliff v. Her Majesty the Queen in Right of Alberta (Human Services), 2021 AHRC 190, the Alberta Human Rights Tribunal clarified that the duty to inquire is not a “standalone duty.” It only arises where there is a connection between the employee’s workplace conduct or performance and disability, AND the employee’s behaviour is such that it raises noticeable concerns of a potential disability to others.

As with all accommodation related discussions, information should only be requested on a need-to-know and confidential basis where the behavior is impacting the workplace. Employers are not initially entitled to inquire about the specific diagnosis or what gave rise to the need for accommodation, and employees are not entitled to dictate the process or require the perfect accommodation.

Navigating your human rights duties and obligations can be a royal pain. Should you require any assistance training your workplace leaders on this issue or assessing next steps for a particular employee, please do not hesitate to contact any member of our Labour, Employment & Human Rights Group.