Employees who suffer mental health issues commonly choose not to disclose this to their employers, in fear of discrimination or ill treatment. McDonald Murholme Principal Lawyer Andrew Jewell discusses the need for employers to support those who disclose mental health issues.
See below article for further details.
Should employees disclose mental health issues?
A recent study conducted by Minter Ellison titled ‘Managing Mental Health in the Workplace’, has revealed that of the 200 surveyed companies, one-third recorded more than 15 employees with mental health concerns in the past 12 months.
The study found that 56% of respondents reported an increase in the number of mental health cases year-on-year, demonstrating the vital need for employers to provide a safe and supportive working environment.
Occasions such as Mental Health Week provide an opportunity for employers to show employees that mental health is an important issue in the workplace. Furthermore, employees should feel comfortable to disclose such issues before it can begin to negatively impact their employment.
Why do employees not disclose these issues?
Many employees may be reluctant to disclose mental health issues to their employer for a multitude of reasons.
These may include the fear of limiting future job prospects, not being properly supported in the workplace after disclosing such issues, as well as a lack of understanding of the issues and the potential for the employee to be the victim of discrimination.
However, there may come a time when an employee’s mental health concerns begin to impact their work performance and employees should consider disclosure before the relationship sours.
What are an employer’s responsibilities?
There is an expectation on employers under Australian law to provide a safe working environment to an employee.
Employers should ensure that employees are not going to fall victim to any behaviours such as bullying, discrimination etc. that may exacerbate or contribute to a mental illness.
If an employee’s mental health issues cause problems with their work performance, for example affecting their punctuality, an employer who is aware of the situation is given the opportunity to support the employee.
These issues may be solved as simply as making reasonable adjustments to employment conditions or expectations for a particular employee, such as flexible starting or finishing times and providing time to attend appointments etc.
By implementing such processes, the employer is ensuring that the employees have an increased level of trust in their employer and feel more confident in their disclosing of issues as well as meeting their legal obligations.
Protections for employees
In the event that an employee feels they have been discriminated against after disclosing their mental health concerns to their employer, there are multiple protections available to them under the law.
The Australia-wide Disability Discrimination Act 1992 (Cth) and equivalent state and territory laws make it unlawful to discriminate against, harass or victimise people with disabilities – including in an employment context.
An employee may also be eligible to make a claim under the general protections provisions of the Fair Work Act 2009 (cth).
If you have an employee who feels they have been discriminated against based on their mental illness, seek legal advice.
Andrew Jewell is a principal lawyer at McDonald Murholme.
Reference: ‘Should employees disclose mental health issues?’, Workplace OHS, 27th October 2016.