Mental health in the workplace – are you discriminating?.

26 October 2016 | Reading time: 2 minutes

Australia recently marked World Mental Health Day, a campaign which raises community awareness about mental health issues. In support of this cause, we briefly highlight, in this blog, an Australian employer’s legal obligations to employees with a mental illness.

Around two thirds of adult Australians experience some level of mental illness at some point in their life[1]. Given this statistic, it is likely that an employee will develop some form of mental illness during their employment.

A toxic work environment can cause, contribute to, or exacerbate, an employee’s mental health condition. In fact, it is no surprise that mental illness:

  • is a leading cause of absenteeism in the workplace and long-term work incapacity; and
  • contributes to reduced work performance and lower productivity.

A legal duty of care.

Everyone in the workplace has a duty of care to eliminate risks to health and safety in the workplace. However, for employees with a mental health condition the most important duty holder is the employer.

The treatment of employees with mental health conditions are regulated by laws relating to:

  • health and safety;
  • discrimination;
  • workers’ compensation; and
  • industrial relations.

Based on these laws, employers must:

  1. not discriminate or take adverse action against an employee (or prospective employee) with a mental health condition in the workplace[2].
  2. make reasonable adjustments to the workplace to accommodate the employee’s mental health condition (with some limited exceptions).
  3. eliminate risks to employee health and safety in the workplace so far as is reasonably practicable. Employers should develop workplace strategies to manage mental health sufferers who are unable to work in high stress environments.
  4. ensure the employee’s privacy is respected by keeping the mental health status confidential.

Not just a legal obligation.

There is increasing evidence that workplaces can play an important role in maintaining the mental health and well-being of employees. According to Love Me Love You[3], a non-profit organisation that raises awareness of mental health issues, employers can promote workplace health and safety by building a positive and supportive workplace environment.

Safe and healthy workplace environments:

  • reduce the costs associated with work absenteeism and turnover;
  • improve morale and employee loyalty; and
  • avoid workplace related litigation claims and penalties[4].

Providing a safe and healthy workplace for employees with a mental illness and avoiding discrimination are well recognised legal obligations. Indeed, workplace law is rapidly evolving. Not only is it required at law, but it’s also good for business. Employers should get legal advice to be sure they are complying with the law, as ramifications can be severe.

[1] 4364.0.55.001 Australian Bureau of Statistic National Health Survey: First Results, 2014-15.
[2] Fair Work Act 2009 (Cth), Disability Discrimination Act 1992 (Cth), Equal Opportunity Act 1984 (WA), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1996 (NT), Anti-Discrimination Act 1991 (Qld), Equal Opportunity Act 1984 (SA), Anti-Discrimination Act 1998 (Tas), Equal Opportunity Act 2010 (Vic).
[4] 2010 Workers with Mental Illness: a Practical Guide for Managers; Australian Human Rights Commission.