Frustration of contract, absenteeism, modified duties, bundling work, creating new position.
Official Abstract: "The focus of this article is mental health and workplace disability discrimination in the UK. The article will look at a number of ways that disability discrimination in the UK could be developed to the advantage of people with mental health problems, through an examination of the legislation and through case analysis.The issues that are raised by disability discrimination on the ground of mental health are pertinent to all legal systems that have enacted laws to try and protect people suffering from disability discrimination.
Commentary on Alberta CA case Kellogg Brown & Root Canada, analysis of post job offer but pre-employment drug testing policy and casual cannabis used for disability; justification of testing for drugs in 'safety sensitive' positions.
Discusses when addiction is not considered prima facia discrimination by the SCC and the descenting opinions. Reviews the SCC decision on when a zero-tolerance policy will be upheld despite the presence of an addiction.
Looks at the perspective of persons with disabilities to identify the factors that influence their employee duty of disclosure; concerns that are considered when deciding to disclose, such as the unfair negative stigma often received, isolation or lowered expectations; highlighting barriers in the workplace that should be removed in order to address and circumvent such disclosure considerations.
Examines the rights of persons with mental health issues when participating in the workplace, and argues that the principle of inclusion can facilitate a better understanding of discrimination complaints in order to address them appropriately.
The article addresses the tension created by the Supreme Courts's S.15 tests of adverse effects discrimination and there potential to effect the judicial definition of prima facia discrimination under human rights codes. It further discusses how this was resolved with a restatement of the test in the Moore case.
The author criticises the SCC finding that the manner the employee was terminated, in which the employer chose to stop accommodating the employee’s disability, did not constitute discrimination, despite the lower courts finding of bad faith. The SCC affirms that a breach of the human rights code can not constitute an independent actionable cause of action. The Court restricts the use of bad faith damages in a wrongful dismissal cases.
Advocates for a systemic approach to anti-discrimination law and reviews the factors considered when anticipating the need for individualized accommodation; reiterates that prima facie case of discrimination should be distinct from assessments of a bona fide occupational requirement.