Mental health in the workplace can be a pretty tricky topic to handle, but it’s important to recognise that both employers and employees have formal rights and responsibilities under discrimination, privacy and work health and safety legislation.
The national Disability Discrimination Act (1992) and similar state and territory laws make it unlawful to discriminate against, harass or victimise people with disabilities, which includes mental health conditions. Discrimination could occur at various points in a workplace setting including during the recruitment process, when determining conditions of employment such as pay rates or work hours, in selecting or rejecting employees for promotion and through dismissal or demotion. Under the Act, employers are required to make reasonable adjustments to support people with a disability (including a mental health condition). If an employer fails to do this, it may constitute discrimination.
Making Reasonable Adjustments
Reasonable adjustments must be made to the workplace or the employee’s role in order to help them stay at work or return to work after an absence. They can be temporary or permanent and are required as long as the employee can otherwise fulfil the core requirements of the job.
Maintaining healthy and safe workplaces
Workplaces are required to be, as far as is reasonably practicable, physically and mentally safe and healthy for all employees by the Occupational Safety & Health (OSH) legislation. Steps must be taken to ensure that the work environment does not harm mental health or worsen an existing condition. However, this legislation acknowledges that employees also have a responsibility for their own health and safety.
Under the national Privacy Act (1988) and similar legislation in some states and territories, employers must observe confidentiality and respect the privacy of each employee. This means an employee’s mental health condition cannot be shared with anyone without their permission. That is, unless there is a direct risk to their health and safety or that of others.
Employee legal requirements
There is no legal obligation for an employee to inform their employer about a mental health condition if it does not affect how they do their job. This applies to both a current employee or a potential employee going through the recruitment process. Employees have a responsibility under OSH laws to take care of themselves and others and cooperate with their employer in matters of health and safety.
If an employee’s disability (including a mental health condition) could reasonably be seen to create a health and safety risk for other people at work, then not telling someone about that risk could be a breach of the employee’s obligations under the OSH legislation.
For advice regarding mental health in the workplace including a Managing Mental Health in the Workplace Procedure, please contact us on (08) 9316 9896 or firstname.lastname@example.org.