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Bipolar Disorder0


Bipolar Disorder0

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									                               Working with bipolar disorder

The original King James version of the occupational health bible enshrines the
commandments of the Disability Discrimination Act 1995 (DDA). The gospels
clarify the ban on discrimination, harassment or victimisation of the disabled. All
matters of moral judgment and common decency are set out, reminding us how
we are to behave in every employment scenario and in the provision of goods
and services if we are not disabled and what to expect of the standards of others
if we are. One of the main effects of the DDA has been to enable people to
observe     strict   parameters     of   dealing   with   disability   and   clarify   proper
expectations. Prior to its advent, disability had to be pretty clear to the naked eye
in order to evoke the basic courtesies of life before being turned down for a job.
Without a white stick or a wheelchair, a person would have been deemed fit as a
fiddle and any form of mental disorder was simply not on the spectrum of

Then, along came the simple definition of disability which is now engraved on the
collective occupational health profession: a physical or mental impairment that
has a substantial and long-term adverse effect on the ability of the individual to
carry out normal day-to-day activities. It all seems so obvious now but at the
time, it was almost revolutionary. Disability was previously something associated
with social security benefits and effectively required people to be unable to work.
DDA brought the disabled into the work-place through the key concept of
reasonable adjustments. These have been required by law for so long, it now
seems unreal to look back to a time when it was not so.

The effect is not on the ability to work but on the effect on normal day-to-day
activities as reflected in at least one of several specific capabilities including
hearing, manual dexterity, mobility, speech and vision. In the employment
scenario, a highly significant item is that of memory or the ability to concentrate.
There are variations on the theme of concentration which may result in effects on
behaviour. Thus, there may be times when a person’s ability to remember the
structure     of     social   interactions   is    affected   through    disturbances      of
neurotransmission or changes in biochemistry. Which is how sufferers from
bipolar disorder come under the protection of the DDA.

Bipolar disorder
Bipolar disorder, sometimes described as manic depression, is a fluctuating
psychiatric    condition   which     from   time     to   time   affects   behaviour   and
concentration. Rather than being a single disorder characterised by episodes of
abnormally elevated and/or depressed mood swings, there is a spectrum of
disorder characterised by changes of mood occurring with varying degrees of
rapidity. Even if mood changes are interspersed with periods of normality, there
may be lack of insight on the part of the sufferer which can result in difficulties
with coping strategies for work-mates or can place the individual and others at
risk when mood veers to one end of the spectrum or the other. The comparison
has been drawn between the external perception of a devastating, intractable
condition and the relentless pursuit of excellence, sometimes leading to
remarkable achievements. In other words, a destructive potential can be offset by
creative capabilities. Medication and medical supervision are often successful in
balancing the highs and lows of otherwise unpredictable mood swings but, even if
remediable by medication, bipolar disorder amounts to a disability under the Act.
Not only is it likely to be episodic or recurring, in some cases which are resistant
to medication or the patient is non-compliant, it may also be progressive or

In    Health      and      Quality     of     Life        Outcomes     2008,     6:    76
(, 38 adults suffering from HIV “conceptualised
[their disability] as multi-dimensional and episodic characterised by unpredictable
periods of wellness and illness.” Although HIV and bipolar disorder have nothing
intrinsically in common, the fluctuating nature of both conditions is perfectly
summarised in that extract.

What’s in a name

The name of the illness is a label that hangs around the neck of the sufferer. The
beauty of the DDA is that all disabilities are protected save for those acquired by
choice such as fire-setting and drug addiction. All perceptions of opprobrium or
difficulties in the workplace must be set aside. The emphasis is not on the
condition but on how to cope with it: reasonable adjustments. The change in
terminology from manic depression or manic depressive psychosis (still used on
medical certificates from time to time) clarifies the range of change in mood from
one pole to the other and that the condition is a disorder rather than a disease, a
maladjustment of function. The problem in the workplace is how to deal with the
manifestations at the further ends of the spectrum, the colossally diagnostic ups
and downs. The thing is: the DDA requires people to gain access to work to cope
with disability. It does not require the presence of people at work in any stage of
any fulminating illness such as would be the situation where a severe
manifestation of mood swing comes into play. At the low end of the mood
disorder, there are reports of attempted suicide. At the upper end, psychotic
symptoms can develop including hallucinations, extreme paranoia and delusions.
Sending someone home (safely) from work in such a state is mandatory to
protect other employees but the public manifestation of       severe symptoms is
disruptive to the workforce and can engender fear making it difficult to
rehabilitate the sufferer when fit to return to work. It is essential that staff are
trained to deal with fear and annoyance through managerial channels as taking
the law into their own hands may result in conduct which is perceived as – and
could indeed be - harassment

Occupational health involvement is likely to be at the stage of safe removal from
the premises if there is a breakdown in the workplace. This is not necessarily
going to be a full-blown display of unacceptable or frightening behaviour but may
be an intensification of manic obsession with trivia to the point of distracting
people from their work or irritating and angering them with the result that
general business functions are disrupted. Equally, occupational health personnel
will be involved in the situation of return to work after a period of absence. There
is no rule of thumb on the length of any absence nor is there on the number of
absences. What is required is not only for the employee to be fit for work but for
fellow employees to be educated about how to deal with issues that can arise
without disclosing the nature of the diagnosis which subject to confidentiality and
data protection rules. The capacity to hold down a job depends on the level of
instability and whether there are any avoidable triggers.

Mad, bad and dangerous to know

That’s what Lady Caroline Lamb had to say about the poet, Lord Byron. When you
see those three terms put together like that, they summarise a public perception
of the bipolar sufferer. They also indicate how symptoms are treated in the

Let’s look at mad first of all. The DDA requires reasonable adjustments to be
made to get people into work. It does not require sickness presence. It may be
necessary, if appropriate adjustments cannot be made, to consider terminating
the employee’s employment on the grounds of ill-health. There is no check-list of
what would be reasonable adustments. Each individual is different and each time
there is an episode, circumstances will be different. Known risk factors may be
avoided but there may new ones or the metabolism may change without warning
so that today’s adjustment may be tomorrow’s provocation. When all else has
failed, dismissal on the grounds of capability will come to the employer’s mind. As
with any dismissal, it will be the last resort when all reasonable adjustments have
failed to protect the bipolar sufferer and his co-workers. Proper procedures must
be followed to avoid falling foul of the DDA and to ensure fairness under the
Employment Rights Act 1996.

Bad is what the conduct may appear to be if the employer is not informed of the
underlying condition.   The Disability Rights Commission Guidance rightly points
out that, if the employer does not know about the disability, he cannot make the
adjustments necessary to protect the rights of the disabled employee:

In Department of Work and Pensions v Hall (2005), the Employment Appeal
Tribunal upheld the Employment Tribunal’s decision that DWP had constructive
knowledge of H’s disability and had failed to make reasonable adjustments. H’s
job application omitted mention of her psychiatric condition for which she was not
taking prescribed medication. DWP were not alerted by H’s refusal to answer
questions about her medical history or to provide access to her doctor for a
report. DWP was held to have constructive knowledge of her disability because
after H started work, she was involved in several confrontations with other
members of staff with verbal and physical interactions. Before she was subject to
disciplinary proceedings, she applied for a tax credit under a disability
entitlement. She was dismissed on the grounds of conduct. The EAT rejected
DWP’s argument that no reasonable adjustments would have been possible
because H was not taking her medication. It was clear that DWP had not put its
mind to reasonable adjustments at all.

The moral of the story is that if it looks, feels and sounds like, it is. However, if
conduct is unacceptable and in clear breach of the disciplinary code, a proper
investigation into the conduct should highlight any underlying medical condition
and indicate that the DDA may have to be considered.

As far as dangerous is concerned, the risks of over-confidence do not have to be
spelt out. But there are degrees. Over-fussiness and obsessive attention to detail
can and does drive fellow employees to distraction: this may result in a process
leading to dismissal for some other substantial reason. If one employee simply
cannot work with others and there is disruption of the work effort, the parting of
the ways may have to come.

Happier endings

Dismissal is the last resort in any employment situation. The risk of disability
discrimination is high unless particular care is taken to try to make work
arrangements fit in with the employee’s medical condition, no matter whether it
is a broken bone or a sprained psyche. It is worth taking a detailed look at the
2009   ACAS   Code    of   Practice on   Disciplinary and   Grievance   Procedures,
supplemented by the ACAS Guide, to see how HR will conduct any disciplinary
hearings. Bearing in mind the specific medical knowledge of the occupational
health team, there should be co-involvement to deal with the overlaps with
capability in behaviour related issues. It is essential to clarify whether the proper
way forward is to use the capability procedure which should make a clear
distinction between disciplinary and behavioural or performance issues.

One of the problems with a relapse-remitting disorder is that the employee can
have a poor sickness record. In Royal Liverpool Trust v Dunsby (2005), the
employer’s appeal succeeded against a judgment that there had been disability
discrimination and unfair dismissal of an employee with a dreadful sickness
absence record, attributed by its occupational health department to personal
problems. The DDA does not prevent dismissal because absence is wholly or
partly on grounds of ill-health due to disability. Any dismissal requires fair
procedures and must be justified but the DDA does not require a sickness
absence procedure to disregard disability-related absences. The essential point is
that the treatment afforded by the employer must be justified, whether for
bipolar disorder or any medical condition.

This article is by Linda Goldman, Henderson Chambers, with Joan Lewis MA,
employment consultant. It was published in Occupational Health, April 2010

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