What are your rights and obligations around mental health in the workplace?

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What do you do if you find yourself dealing with a mental illness while trying to earn a living? And for employers, what obligations do you have to hire and help an employee managing a mental health condition? This week's Insight found out.

The Australian Bureau of Statistics estimates 45 per cent of Australians between the ages of 16 and 85 will experience a mental health condition in their lifetime.

Many carry these conditions with them to and from the workplace:  a report by beyondblue found one in five Australians have taken time off work in the past 12 months to manage mental health issues, the most common of which were anxiety disorders, affective disorders (e.g. mood disorders like depression) and substance use disorders. 

And some are caused or exacerbated by the workplace. “As people work longer, and harder, there’s less time to spend recovering from work, less time to sleep, less time to eat properly, and we’re seeing the effect of that in the high incidence of mental illness caused by the workplace,” says Alex Grayson, an employment lawyer with Maurice Blackburn Lawyers.  

So what do you do if you find yourself dealing with a mental illness while trying to earn a living? And for employers, what obligations do you have to hire and help an employee managing a mental health condition?

 

Employees - What are your rights?

The legislation

Employees are protected from discrimination based on mental health conditions under the Disability Discrimination Act 1992 (Cth).

According to Heads Up, an organisation working with beyondblue to promote psychologically healthy workplaces, legally a mental health disability can cover conditions that an employee has experienced in the past, present or future, are temporary or permanent, and are actual or just assumed. Courts and tribunals commonly interpret mental health conditions by referencing the Diagnostic Statistical Manual of Mental Disorders, published by the American Psychiatric Association, says Alex Grayson.  

The legislation protects someone with a mental illness from discrimination during all aspects of employment, such as stages recruitment, negotiations around pay rates and work hours, and in instances of termination or redundancy. 

 

Disclosure

Grayson says employees do not have to disclose a mental health condition to a current or prospective employer, but does caution about answering dishonestly. She tells Insight that this dishonesty could lead to disciplinary action in the future. Grayson also says if you are asked about existing mental health conditions in an interview, you can question the relevancy of such a question to the job’s requirements. 

If you do disclose to an employer that you have a mental health condition, they are obliged to respect your privacy and not distribute that information to anyone without your consent.

This week on Insight

 

'Inherent requirements' and 'reasonable adjustments'

The legal crux of managing mental health in the workplace comes down to two concepts: whether the employee can meet the ‘inherent requirements’ of the job, and whether the employer makes ‘reasonable adjustments’ to those requirements to ensure the employee can still work.  

‘Inherent requirements’ are, “essentially, core components of a role,” says Grayson. She says ‘reasonable adjustments’ also vary from job to job, and gives examples of clients who have been given later starting times because their mental illness affects their sleep, or experiences of bullying where a new reporting system or manager has been put in place. “Those adjustments will vary depending on the illness and the manifestations of that illness,” she says.   

 

Taking action

If you believe you are being discriminated against in the workplace because of your mental health condition, Grayson recommends the first step should be to speak with the company’s human resources department or your manager, and then seek advice from a lawyer if a resolution cannot be met. The Disability Discrimination Act 1992 (Cth)  stipulates that an employee with a mental health condition can’t be treated less favourably than a worker without one.

It is illegal for an employer to dismiss a worker because of amental health condition, and if this does occur, an employee has a few legal avenues to pursue, including: 

Employees also have rights under the Disability Discrimination Act if a mental health condition is caused, or exacerbated by, their workplace. Employees can take these kinds of complaints, and also ones relating to dismissal, to the Australian Human Rights Commission, the Fair Work Commission, or their state’s Anti-Discrimination Board.

 

Employers - what are your rights and obligations?

Employers have the right to ask their employees certain questions about their mental health condition for ‘legitimate purposes’. According to HeadsUp, those questions can be:

  • To determine whether the person can perform the inherent requirements of the job
  • To identify any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment and role
  • To establish facts for entitlements such as sick leave, superannuation, workers’ compensation and other insurance.

Employers have an obligation to protect any information they receive against improper access and disclosure.

As mentioned, under the Disability Discrimination Act, employers cannot discriminate against someone with a mental illness in the workplace. 

 

Reasonable adjustments

Under the legislation, an employer must make reasonable adjustments to a person’s job to ensure they can perform in the role productively and safely.

Reasonable adjustments have been interpreted as adjustments that do not cause ‘unjustifiable hardship’ on an employer. This means employers may not be required to make adjustments if they can demonstrate that they are too expensive, difficult or time consuming.

Reasonable adjustments can include:

  • Adjustments to work methods or arrangements, including hours of works and leave entitlements
  • Adjustments to the workplace or work-related premises, equipment or facilities
  • Adjustments to work-related rules or modifications to enable a person to comply with rules as they exist

The individual situation dictates what kinds of adjustments are reasonable in the circumstances.

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Safe workplaces

Grayson says employers should treat mental illness in the same way as any physical illness, and ensure the same level of accommodations are made to ensure an employee can continue working while managing their condition.

Employers also have obligations under the Work Health and Safety Act 2011 (‘health’ is defined as both psychological and physical).  Employers must provide safe and healthy workplaces, systems of work, monitoring of conditions and provision of information, instruction and supervision so employees can work safely.

Grayson advises employers and managers encourage a safe space where employees can disclose mental health conditions and when it might be affecting their ability to work. If the latter occurs, employers should conduct a risk assessment to determine what reasonable adjustments can be made to ensure the employee can maintain their work safely. 

Maintaining a healthy workplace can also require employers to do things like eliminating or minimising common risks to mental health such as bullying, stress, harassment and workplace trauma.

 

Disclosure

If someone discloses to a potential employer in a job interview that they have a mental illness, Grayson says employers should “keep front of mind that they can’t discriminate against someone for having a mental illness, just like they can’t discriminate against someone for having cancer, or a broken leg.” This goes for whether someone discloses they have a mental health condition before or after they take the job.

She also recommends employers set aside time to fully understand the mental health condition an employee might be dealing with, and to be perceptive to workers who may be experiencing difficulties with a mental illness. If they suspect something is wrong, they should take steps to speak with the employee confidentially and determine whether it might be affecting their work, and what can be done to remedy it.

 

Inability to do the job

“Sometimes, in extreme cases, employees with a mental illness may not be able to perform the job that they are doing,” says Grayson. “However, an employer should be very careful not to terminate an employee until they’ve fully ascertained, based on medical evidence, that employee can’t perform the inherent requirements of the job, without reasonable adjustments.”

The Fair Work Act 2009 stipulates employers cannot take adverse action against an employee if they have a workplace right, such as protection from discrimination. Adverse action covers situations where an employer threatens to, or goes through with, dismissing an employee, injuring an employee, altering an employee’s position to their detriment, discriminating between employees, or refusing to employee a prospective employee.

 

The economics 

Aside from legal (and perhaps moral) obligations to employees, statistics show it makes good business and economic sense to ensure employees with mental health conditions are looked after in the workplace.

Absenteeism, reduced productivity and compensation claims cost Australian workplaces approximately $11 billion per year.

“For everyone $1 spent on addressing mental health and preventing mental health issues in the workplace, $2.30 is saved by each employer,” Grayson adds. “So that’s in reduced absenteeism, reduced turnover and reduced insurance claims.” Those statistics can be found in this report from beyondblue and PWC. 

 

This week, Insight looks at how mental health is being managed in the workplace - and whether it can be managed better. | Mind at Work - Tuesday 9 May, 8.30pm SBS