Each year, approximately one in every five Australians will experience a mental illness. According to an ABS study, 45% of Australians between the ages of 16-85 will experience a mental health condition in their lifetime. With statistics like these, it is crucial to know how to manage mental health in the workplace.
But how can you as an employer ensure your managers and employees know how to respectfully manage and respond to mental illness in the workplace to avoid legal action? It starts with being informed.
What rights do employees have in the workplace?
It is illegal for an employer to discriminate against or dismiss a worker due to a mental health condition. If an employee believes they have been discriminated against or unfairly dismissed they can pursue legal action by:
- Lodging a complaint under the Disability Discrimination Act 1992 (Cth)
- Lodging an unfair dismissal application with the Fair Work Commission
- Lodging a general protections or unfair dismissal claim under the Fair Work Act 2009
Employees also have rights under the Disability Discrimination Act if their mental health condition has been caused, or exacerbated by, their workplace. The Australian Human Rights Commission, the Fair Work Commission, or the state’s Anti-Discrimination Board will hear these complaints along with those unfair dismissals.
As an employer, it is important to keep in mind that a potential employee can also put forward a general protections or discrimination claim. For example, if a candidate was to disclose in a job interview that they had a mental illness, it is illegal to discriminate against them based on their admission. You need to have solid reasons for not hiring a candidate and be prepared to prove them, as it is you who has the onus of proof in a general protections claim.
As there are also accessorial liability issues to consider when it comes to dealing with mental illness in the workplace caution should be used in taking summary dismissal action without mitigating risks via reasonable adjustments. Doing so without such a consideration would leave an employer (and a person involved in the breach such as HR professionals) limiting their argument of the “inherent requirements of the position”.
What rights do employers have in the workplace?
As an employer, you have the right to ask your employees certain questions about their mental health condition provided it is for legitimate purposes.
According to HeadsUp, questions are legitimate if they:
- Determine whether the person can perform the inherent requirements of the job
- Identify any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment and role
- Establish facts for entitlements such as sick (personal/carers) leave, superannuation, workers’ compensation and other insurance
It should go without saying that any information you do receive from employees about their mental health should be kept strictly confidential.
What are your responsibilities when managing mental health in the workplace?
According to the Australian Human Rights Commission, employers are required by law to make reasonable adjustments to the workplace to ensure an employee can perform their role both safely and productively. These adjustments may include changes to work premises, work hours and leave entitlements, as well as additional training or equipment modifications.
However, employers are not required to make adjustments to their workplace if they can prove that an adjustment would be too expensive, time-consuming or difficult or cause some other ‘unjustifiable hardship’ on the business.
In some cases, you may find that an employee is unable to perform their duties due to a mental illness. In these cases, it is crucial to engage an employment law specialist and not terminate the employee until you can, with medical evidence, prove with absolute certainty, that the employee can’t perform the inherent requirements of the job.
As instructed by the Fair Work Commission, “a person (such as an employer) must not take any ‘adverse action’ against another person because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.”
An adverse action can include:
- Dismissing an employee
- Not hiring an employee
- Treating them differently to others in the workplace
- Changing their job description to their disadvantage
- Not giving them their legal entitlements
- Offering them unfair and different terms and conditions compared to others in the workplace
If you terminate before having medical evidence, the dismissal may be seen as an adverse action against the employee, and you can be liable for damages.
Need further advice on how to minimise your risks when managing mental health issues in your workplace? Call NB Lawyers, the lawyers for employers, on +61 (07) 3876 5111.