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Employee terminated before psychiatric evaluation complete

Accommodation E-lert, posted on June 18, 2026 within the category "Accommodating mental disabilities".

The employee was terminated for performance issues but had advised the employer prior that he had physical and mental difficulties.  The employer did not follow up on the subsequent medical report advising of an upcoming cognitive assessment and proceeded with the termination. The British Columbia Human Rights Tribunal Member held that chronic anxiety and depressive issues were established and were a factor in the dismissal.  The employer did not follow up on the indications of mental disability and failed in its procedural and substantive duty to accommodate.

Legal Citation

Shaikh v. Colliers Project Leaders Inc. (No.2), 2026 BCHRT 93 (CanLII) (April 9, 2026) (Johanthan Chapnick, Tribunal Member)

Facts 

The employee was hired as an assistant project manager and, within a month, was criticized for workplace behaviours. 

After receiving this feedback, the employee advised the employer he had medical conditions – including an anxiety diagnosis, which affected his interactions with colleagues as well as back pain issues – for which he needed accommodation. 

The employer requested completion of a functional abilities form with his doctor to determine any accommodation needs.  The form was returned, indicating the employee had mild back issues and recommending a stand-up desk, but also stated that he had cognitive limitations for which he was awaiting a specialist's assessment. 

Without waiting for the assessment process, the employer dismissed the employee. 

The employee subsequently attended the specialist evaluation with a psychiatrist referenced in the functional abilities form. The member noted the outcome:

[35]     The Medical Report, dated February 27, 2020, states that Mr. Shaikh had generalized anxiety disorder [GAD], persistent depressive disorder, and somatic symptom disorder [SSD], and met the criteria for several personality disorders.

Legal Analysis 

The tribunal member first set out the elements of the Supreme Court test in Moore¹ to determine whether the employee has a valid claim of discrimination. 

  • First, it found that the employee had generalized anxiety disorder, persistent depressive disorder and somatic symptom disorder that met the criteria for several personality disorders, thus meeting the first element of the Moore test; 
  • Second, the employee experienced an adverse impact on employment by being terminated; and  
  • Third, the employee’s disability was a factor in his dismissal.  The member acknowledged that there were other factors contributing to his dismissal, but the employee, “must only establish that his disability was one of the factors in his dismissal, even if it was not the sole or overriding factor.”  The tribunal member was satisfied that the employee's disabilities contributed to the behaviour, disorganization and lack of focus, along with the perceived lack of engagement. 

The member concluded that the employee's mental disability caused, or contributed to, the behaviours which gave rise to the employer’s decision to terminate the employee's employment.  

The member then moved on to the duty to accommodate analysis.

Applying the Supreme Court analysis in Meiorin², the member accepted the employee claim that the employer failed to follow through on the information in the functional abilities form and, thus, the employer's inquiries into the employee’s disability and accommodation needs were incomplete when he was terminated.  In doing so, the member rejected the employer’s claim that, despite what it called its significant inquiry attempts, it was unaware of any accommodation needs. 

In doing so, the member referred to the obligations on the employer in the accommodation process as set out in the Supreme Court’s decision in Renaud³ and held that simply meeting with the grievor once and obtaining the information for the functional abilities form was not enough to fulfil its legal obligations in the duty to accommodate: 

[70]   [B]efore acting on the Client’s concerns and wishes in a way that adversely impacted [the employee] in his employment (i.e. before terminating his employment), [the employer] was obligated to make reasonable inquiries into the possible connection between the reported performance issues and [the employee’s] disability, and into [his] potential need for accommodation. I find that [the employer] started this process, but did not finish it. It did not take reasonable steps to obtain all necessary and readily available information about [the employee’s] disability before dismissing him. 

The member concluded it was unreasonable for the employer to terminate the employee based on performance issues without waiting for the medical update:

[85]      In sum, then, I find that Colliers did not meet its positive, procedural obligations in the accommodation process, and foreclosed the possibility of any reasonable, substantive accommodation outcomes by unreasonably terminating Mr. Shaikh’s employment during the inquiry stage of the process. Accordingly, I am not satisfied that Colliers fulfilled its duty to accommodate Mr. Shaikh. As a result, Colliers has not established its justification defence. Mr. Shaikh’s dismissal was therefore discrimination. His complaint of discrimination in contravention of s. 13 of the Code is justified.

The member went on to award wage loss of $24,615 and $15,000 in damages for injury to dignity, feelings and self-respect, pursuant to the British Columbia Human Rights Code.

Takeaways for Employers 

Employers should ensure that they follow up on human rights issues that might affect employee performance or behaviour before making negative employment decisions.  Further, where the possibility is confirmed, there remains an obligation to then make a fulsome inquiry into accommodation needs and opportunities.  The duty to inquire thus extends not just to following up on where there is, as in this case, a possible disability, but also in the required subsequent search and assessment of accommodations. 

Takeaways for Unions 

Unions should carefully review the employer’s conduct when there are indications a human rights characteristic, such as disability here, may be a factor in behaviour or performance.  While all parties – employer, employee and union – have an obligation to participate in the accommodation process, it is the employer who is best positioned to conduct the initial accommodation search and review, which the union should then actively participate in and contribute to.

¹ Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360.

² British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 

³ Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 [Renaud].