There's an obligation on employers to be alert to any changes that may indicate problems, says legal expert
The number of employees who believe their employers are providing support in terms of wellbeing is falling, according to a recent report.
In 2023, less than half (48%) of U.S. employees have been confident their employers care about their overall wellbeing, down from 59% in 2021.
A further 57% of respondents report they were suffering from at least moderate levels of burnout, with their biggest stressor being heavy workload, according to the Aflac WorkForces Report 2023-2024 based on a survey of 1,201 employers and 2000 employees.
And while the results involve Americans, the trends are reflected here too.
“Certainly, there are more mental health issues being identified across New Zealand and the workforce more generally,” says Bronwyn Heenan, employment partner at Simpson Grierson lawyers. “I think we’ve become more open to understanding those sorts of issues but the management of them is an ongoing issue for employers.”
Mental health is just as important as physical health, so employers have to ensure they’re maintaining a safe and healthy work environment, she says.
“That’s an obligation under the Health and Safety at Work Act, but also more generally in terms of employment law.”
Providing a safe and healthy work environment includes giving employees time to turn off in the age of email and text messaging, says Heenan.
“It also includes other things like keeping an eye on people's hours of work and watching out for people who are perhaps suffering from some form of mental illness, or just aren’t happy at work.”
There’s an obligation on employers to be alert to any changes that may indicate problems, as well as a need to be proactive, she says, and keeping good lines of communication open is important.
“It really is about taking the time and the care to inquire into how people are doing and having regular catchups.”
If an employer suspects something isn’t right, then it’s important to try to work with the employee to ascertain why that might be. For example, she says, if an employee's constantly late for work, take the time to talk to them to find out the cause - perhaps a bus route is changing - or if it’s related to a potential mental health issue.
In a situation where an employee does disclose they’re having mental health problems and the employer is concerned it’s impacting their work or is worried about them, it’s possible to ask for further medical information to learn more about how to assist that employee, says Heenan.
“If they haven't disclosed and you are concerned, you can sit down with them, talk it through and explain your concerns. You can ask them to see a doctor or get some further medical information if you are really worried. An employee has the right to say no and you can't force someone to go to the doctor or for someone to give you medical information, but a refusal to provide doesn't happen very often.
“If you're really trying to get to the bottom of a medical issue, and an employee won't provide that information, they've also got some reciprocal obligations, and the onus can be on the employee to provide the information if it's going to help keep them safe in the workplace as well.”
Employers who don't provide a safe work environment could face an unjustified disadvantage claim – the type of claim raised if someone’s still employed - or face someone resigning and claiming constructive dismissal, says Heenan.
A case often referred to in this space is the FGH v RST [2018] case, in relation to an employee who had a diagnosis of ADHD, she says. In this situation, the employer felt the employee wasn’t performing so they put her on a performance improvement process.
“During that process, her mental state worsened so she raised a grievance claiming she’d been unjustifiably disadvantaged by her employer to provide her with a safe working environment.
“The employment court actually found that RST had failed to properly manage her ADHD and her anxiety disorder, as far as reasonably practicable for that test under the Health and Safety at Work Act.”
Interestingly, RST had taken quite a number of steps to try and manage the mental health issue, says Heenan.
“Some of those included extending the timeframe to respond and offering an EAP. But the court said it wasn’t enough and that the managers of the employer were well aware that the employee had an inability to handle stress as a result of her mental health issues and by continuing the performance appraisal, even with some safeguards in place, it would heighten her anxiety.
“There were some medical certificates, but not much information on those. And so the court went as far as saying, that as a fair and reasonable employer, RST should have taken responsibility for requesting further medical information.”
To help avoid situations escalating, keeping communications open is key, says Heenan.
Getting to know staff and having trusted relationships with people they can talk to in confidence helps, as do staff not being fearful that confiding would not somehow be used against them, she says.
“It has to be a two-way street – both parties have to be responsive and communicative and try to make the employment relationship better. That’s the whole good faith component of any employment relationship.”
