As many of our readers would be aware, the second Thursday of September in each year, is a national day dedicated to asking family, friends and colleagues the simple question: “Are you okay?”. Given that Thursday 8 September has just gone by, and in light of growing global awareness of depression and suicide, mental health issues and domestic or family abuse, we thought it would be fitting to write a client alert about this topic. Whilst matters like depression and domestic problems may have previously been considered unspeakable outside of private life, in light of emerging public acceptance to keep these matters on the social and political agenda, employers should now, more than ever, be aware of their legal obligations to support and accommodate those struggling with or recovering from mental health issues and domestic abuse.
In one way or another, mental health is likely to either, directly or indirectly, affect all of us at some point in our lives. In this regard, how a person is treated, including at work, can have significant consequences for those suffering from, or supporting a person who is suffering from, a mental health condition or domestic abuse. The only way to determine however, the most appropriate method to support an employee in such circumstances is to talk to them. As such, employers have the right to ask questions about an employee (or potential employee’s) mental health. If necessary, where more information about a condition is legitimate and reasonable, an employer is permitted to ask an employee for more medical information. This information may be used to:
- determine whether the person can perform the inherent requirements of the role for which they were hired;
- determine if any reasonable adjustments can be made to the employee’s working environment, duties or system or work to alleviate the impacts on them of their health condition or domestic situation; or
- establish the need to take personal leave, and access superannuation, workers’ compensation and other forms of insurance.
An employer ought to be cognisant that any request for additional medical information needs to be for a legitimate purpose otherwise the employer runs a substantial risk that the request, and any subsequent detrimental treatment of the employee, may constitute adverse action in breach of the Fair Work Act 2009 (Cth). Similarly, discriminating against an employee experiencing domestic or family violence by either, for example, denying them flexible working arrangements, demoting or transferring them to another area of the business, or terminating their employment, is prohibited under the Sex Discrimination Act 1984 (Cth) and may sound in a damages award against a contravening employer.
It is equally important for employers to be aware of the legal obligations arising under the Disability Discrimination Act 1992 (Cth) (“Disability Act”) which prohibits discrimination of an employee on the grounds of a disability – including a mental health condition. Accordingly, an employer must offer equal employment opportunities irrespective of an employee’s mental health condition provided they are able to fulfil the inherent requirements of the role for which they were employed, or would be able to do so through the implementation of reasonable adjustments. In this regard, for employees suffering from mental health issues, including as a consequence of domestic abuse, often small changes to the working environment will be sufficient to ensure they have access to equal employment opportunities and are not subjected to undue emotional hardship or unreasonable stress at work. Under the Disability Act, an employer is required to make reasonable adjustments with a view to ensuring that an employee with a disability can productively perform the functions of the job. Such adjustments may include, but are not limited to:
- reducing the employee’s hours of work;
- allowing the employee to work flexibly, including remotely or from home; or
- modifying the employee’s duties or system of work, including providing additional resources to assist the employee manage their workload.
Importantly, these laws apply to independent contractors and partners in a partnership.
In addition to the legal requirements arising under human rights legislation, all employers are subject to work health and safety laws, both at State and Federal level, to ensure, in so far as is reasonably practicable, that the health and safety of an employee is not put at risk from work carried out for the employer. In this way, employers ought to keep abreast of mental health issues, and ensure that any employee suffering from mental health issues or domestic violence, has access to appropriate support services, such as an Employee Assistance Program. It is also key for employers to ensure that employees suffering from mental health issues, or domestic abuse at home, are not exposed to bullying, unreasonable job stress or harassment. So far as is reasonably practicable, employers must ensure that such behaviours are eliminated from the workplace. In New South Wales, employers must consider whether knowledge of a serious domestic violence incident against an employee in their employ triggers an obligation under the Crimes Act 1900 (NSW) to report serious indictable offences to Police authorities.
Apart from legislatively entrenched safeguard, responsible employers will be aware that mental illness is more prevalent that most people realise, and should not presume that it only affects people outside of the workplace. In this regard, ignoring the problem is far greater than the cost of developing and implement appropriate strategies and mechanism, such as policies, to create a safe and unthreatening environment where employees feel comfortable communicating openly with a manger or business owner about mental health or domestic abuse issues, and the measures required to assist an employee in these circumstances.
Some practical steps employers can take to raise awareness of mental health and domestic abuse issues include:
- providing appropriate management training to staff and senior business leaders including in how to have conversations that may be difficult or confronting with employees;
- ensure organisational structures are clear, and roles and responsibilities are clearly defined;
- ensure safe working conditions and conduct independent audits to assess compliance;
- communicate regularly and on an informal basis with employees about issues affecting them;
- encourage a workplace culture where employees support each other and are positive;
- respond appropriately to requests for flexible working arrangements;
- monitoring employee absenteeism and workloads to ensure job-stress is minimised;
- recommend medical care to an employee who has disclosed a mental health or domestic abuse issue;
- consult with employees about the creation of a mental health plan (such as a workplace policy); and
- provide access to employees for counselling services or specialist support groups.
After many years of legal practice, what we have come to realise as legal practitioners advising on matters which affect people and human relationships is that recognising and promoting mental health is an essential part of creating a safe, healthy and positive workplace. Importantly, managers and workers both have roles to play in building a safe work environment, one that will not create or exacerbate mental health or domestic problems and where workers experiencing such circumstances are properly supported.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.