Before taking any steps to manage absence or underperformance, employers should understand the complex legal obligations
Workplace mental health has become increasingly important in 2020.
A study by Superfriend found that three in five workers in Australia experienced a mental health condition this year (up almost nine percent from 2019 to 59.5%).
Worryingly, 27.8% of workers who have endured a mental health condition had their first experience during the pandemic.
More than half of employees (55.1%) claimed that no action is being taken in their workplace to address mental health.
Given the unprecedented challenges that many employees throughout Australia are facing, employers would be wise to consider the intricate and sometimes conflicting employment laws relating to mental health.
Sally Woodward, partner at Norton Rose Fulbright, told HRD that dealing with mental health in the workplace can be a complex matter.
“Of course, employers must take all reasonable steps to ensure the health and wellbeing of their employees,” said Woodward.
This is especially significant given productivity due to mental ill-health is estimated to cost the Australian economy between $10-18 billion every year, according to the Productivity Commission.
But if an employee’s condition means that they have prolonged absences or are under-performing, then it’s important to consider what options are available to the employer.
Read more: ‘Urgent need’ to tackle mental health crisis
“Before taking any steps, an employer must understand its (sometimes competing) legal obligations under employment, discrimination and safety laws,” said Woodward.
And when dealing with mental health issues, Woodward said extra care must be taken to ensure the wellbeing of the employee, during what can be a difficult process - “even for the most robust worker”.
The good news is that there have been a significant number of organisations who are implementing mental health programs this year.
The Superfriend study found that one in three workplaces (29.8%) have implemented new initiatives to support workers' mental health and wellbeing since March, such as paid mental health days off, sick pay for casual workers, meeting-free blocks and substantially longer break times.
However, first and foremost, employers should not make any assumptions about the impact of the employee’s mental health issues on their ability to perform their job.
“Any decisions that employers make about an employee’s capacity should be based upon medical evidence,” said Woodward.
“The employer should, ideally, work with the employee to ensure that the employer has a clear medically based understanding of the impact of the employee’s condition and their capacity to perform their role.
Read more: How to build resilience throughout COVID-19
“Managing an employee with mental health issues can be very difficult for many managers, particularly inexperienced ones.”
She concluded by saying that training on mental health awareness and support to managers who are dealing with mental health issues is of real value.
“Several disability discrimination matters that I have dealt with that have ended up in court have arisen where managers have, through inexperience or a lack of understanding of mental health, mismanaged a situation - in many cases with the best of intentions.”
Sally Woodward will be speaking at the upcoming Employment Law Masterclass on the topic of Employee mental health and the law. To register, click here.
