Depression is predicted to be the number one cause of disability by 2030 (WHO, 2008) and in Australia, on average, 1 in 5 people will experience a mental health condition in the workplace (ABS, 2009). Given these estimates and statistics, there is a good chance that your workplace will or does have employees experiencing mental health condition(s) – employees that your workplace has responsibility for. Therefore, it is important to understand the key workplace responsibilities and legal obligations when it comes to mental ill-health.
Understanding and exercising key responsibilities and legislative-driven obligations is beneficial for many reasons. First, and most important, it is the right thing to do and will likely improve the outcomes for the employee. A message is also conveyed that the organisation takes their responsibility about mental health seriously. Understanding and applying workplace responsibilities and obligations is also likely to improve confidence of leaders to respond to mental ill-health, increase the likelihood of successful management of mental ill-health, as well as decrease absenteeism, adverse action, and compensation claims. Finally, it is the law to comply with legislative-driven obligations.
It is important to note that responsibilities and legal obligations apply regardless of how, when, where, or why the employee developed their mental health condition. We will now explore key responsibilities and legislative obligations.
Key responsibilities are to:
- Create a safe and healthy workplace.
- Take mental ill-health into consideration when addressing performance issues.
- Document key indicators of capability and conduct.
- Keep up to date with available resources/supports and offer support through reasonable adjustments, EAP, or encouraging the person to seek professional support.
- Support the other team members.
- Familiarise with relevant policies.
- Facilitate success in the team.
Legislative Driven Obligations
To provide a safe and healthy workplace, including:
- Preventing or minimising workplace risks, which may impact the health and safety of staff.
- Taking reasonable care of our own health and safety.
- Taking reasonable care that our acts or the acts of others and/or omissions do not adversely affect the health or safety of others.
- Providing a workplace free from bullying and harassment.
Not to discriminate
- Discrimination in the workplace against someone with a mental illness is unlawful in Australia. Discrimination occurs where a person is treated unfairly or less favourably because of a personal characteristic such as their gender, ethnicity or disability. This includes mental illness.
Protect the privacy and confidentiality of the employee
- Privacy laws in Australia regulate the handling of personal information (including health information). Organisations have an obligation to protect the personal information about employees, including disclosure about mental health.
Provide reasonable adjustments
- A workplace (reasonable) adjustment is a change made to enable the person experiencing mental ill-health to participate in the workforce without compromising the health and safety of the employee, others, or the productivity of the organisation.
Compliance with the above responsibilities and obligations needs to be done sensitively and with consideration of how to have an effective conversation. A personalised approach, led by leaders who are confident of their responsibilities and skilled to effectively respond to mental ill-health, is best practice.
Learn more about workplace obligations and responsibilities as an organisation, manager and employee in respect to mental ill health through iHR Australia’s face-to-face training and eLearning.
Disclaimer: The information provided in this communication is not intended to be legal advice and should not be interpreted as such. Seek legal advice through a registered legal practitioner about managing mental health issues in the workplace. Also be aware of the relevant legislation in your specific state or territory.
About the Author – Dr Kathryn Gilson, Clinical Psychologist
Dr Kathryn Gilson is a clinical psychologist with a Doctorate of Psychology and over 10 years’ experience working in private practice assessing, diagnosing, treating and managing adults with mental health issues. She has experience working with clients who experience depression and anxiety (including generalised anxiety, panic disorder, social anxiety, phobia, and post-traumatic stress disorder) and many other psychological problems. In her career as a psychologist, Kathryn has worked extensively within the higher education industry as an adjunct lecturer, contributed to clinical trials by developing innovative treatment manuals for mental health problems, published in peers reviewed journals, presented at national and international conferences, provided expert opinion for magazine articles, and developed evaluation studies of private practice effectiveness using CBT.