The majority of employees with mental health problems, successfully manage their illness without it impacting on their work and it is important to remember that people affected by mental illness have the same rights and responsibilities, as other employees.
A stressful work environment or a workplace incident, can however cause considerable anxiety and aggravate or contribute to the manifestation of mental illness. Employers and managers are obliged to take appropriate steps to eliminate and minimise health and safety risks in the workplace. In terms of mental illness, as an employer or manager you are compelled to:
- identify workplace practices, actions or incidents which may cause or contribute to the mental illness
- take actions to eliminate or minimise these risks.
The legal obligations of employers in relation to the management of mental illness in the workplace are as follows:
- Occupational Health and Safety (OHS) legislation requires you to ensure your workplace is safe and healthy for all employees and does not cause ill health or aggravate existing conditions. It is important to objectively assess the actual OHS risk of a worker with mental illness. Proceed as one would with any Risk Assessment:
- determine the degree of risk and take steps to minimise or prevent it
- take action to eliminate or manage the risk as appropriate.
- Discrimination in the workplace against someone with a mental illness (or other disability) is unlawful under theDisability Discrimination Act 1992. You are also required to make reasonable adjustments in the workplace, to meet the needs of workers with mental illness.
- ThePrivacy Act 1988, requires you to ensure personal information about a worker’s mental health status is not disclosed to anyone without the affected employees’ consent. The only exceptions may be:
- use of the information is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person, or
- use of the information is required or authorised by law.
You are obliged to eliminate, isolate or lessen health and safety risks, while taking care to ensure the privacy of employees is upheld. Under the Fair Work Act 2009, it is essential to ensure that unfavourable action is not taken against a worker because of their mental illness. An adverse action can include dismissal, injuring the employee, altering the position of the employee to the employees’ disadvantage, refusing to employ a prospective employee or discriminating against an employee with mental illness.
While employers have several legal obligations, they do have the right to ask certain questions about an employee or potential employee’s mental health status, if obtaining more information about a condition is legitimate, necessary and desirable. This additional information may be:
- to determine whether the person can perform the inherent requirements of the job
- to identify if any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment
- to establish facts for entitlements such as sick leave, superannuation, workers’ compensation and other insurance.
- If you do ask your employee for information, you must maintain confidentiality and protect his or her right to privacy. This means protecting the information against improper access and disclosure.
In turn, all employees (including those with mental illness) are legally obliged to:
- take reasonable care for their own health and safety
- take reasonable care that their acts and omissions do not adversely affect the health or safety of others
- cooperate with any reasonable instructions to ensure workplace health and safety.
The law defines discrimination to include both direct and indirect discrimination. It is important to note that a failure to make reasonable adjustments for a worker with disability, including a worker with mental illness, may constitute direct or indirect discrimination.
Direct discrimination occurs in employment where:
a worker is treated less favorably by an employer than someone without disability.
For example, refusing to employ or dismissing someone because they have a mental illness.
not allowing someone with depression to work part-time where this arrangement has been sought as an adjustment for the worker’s mental illness, may be direct discrimination.
Indirect discrimination occurs in employment where:
an employer sets a requirement or condition that applies generally, but an employee cannot comply with it because of their disability or they are disadvantaged.
For example, it may be indirect discrimination to require a worker with mental illness to start work at 7am, when the effect of their medication means they are not alert in the early morning.
It may be indirect discrimination to expect that employees must work an 8 hour shift, but not allow a worker with mental illness to take additional breaks where required, to be able to complete their shift.
Reasonable adjustments are changes which can be made to a job, to enable a worker to perform their duties more effectively in the workplace.
They should be in response to the particular needs or issues of a worker and can include:
- offering flexible working arrangements (e.g. job rotation, variable start and finish times)
- changing some aspects of the job or work tasks (e.g. breaking down a large, demanding project into a number of smaller tasks)
- changing the workplace or work area (e.g. moving a worker to a quieter work area)
- purchasing or modifying equipment.
An adjustment will be a ‘reasonable adjustment’ unless it would cause an employer an ‘unjustifiable hardship’ to make the adjustment.
Harassment is defined as an action taken in relation to a person’s disability that is likely to humiliate, offend, intimidate or distress the person. The behaviour does not have to be repeated or ongoing to be harassment.
Inherent requirements of a job are those requirements, tasks or skills that are essential to the position.
It is not unlawful discrimination to terminate a worker’s employment where they cannot perform the inherent requirements of the job after reasonable adjustments have been made. However the employer may still have legal obligations under the contract of employment, award or agreement or other laws.
In consultation with experts and clients, myosh have developed the Wellbeing platform to Manage Workplace Mental Health.
Our cloud based solution provides managers and employees with resources and strategies to:
- Reduce Risk
- Improve Productivity
- Promote a positive working environment
- Raise awareness and reduce stigma
Australian Human Rights Commission