Responding well to the inevitable

Experiencing mental illness is fairly common among New Zealanders. Almost half (47%) will be affected by some form of mental illness and/or addiction at some point in their lives and one in five are affected each year. Coping well with mental health issues in the workplace is, then, an important skill.

As a starting point, it’s vital to know that ‘psychiatric illness’ is a prohibited grounds of discrimination under section 21 of the Human Rights Act 1993. But this does not mean that there are no circumstances in which an employer can ask about a candidate’s mental health, or even dismiss an employee with a mental health issue.

General questions about an employee’s mental health are illegal. “However, if there were particular safety aspects with the role, you could ask general questions in relation to: do you have any conditions, physical, mental, or otherwise that could cause a safety issue in terms of performing this role?,” said Blair Scotland, principal – Chen Palmer.

Employers are also within their rights to ask candidates if they are aware of any conditions that would affect their ability to perform the role, or would require the employer to provide special services or facilities to enable them to do so.

Once an employer has hired someone with a mental health condition, the law becomes slightly trickier. Scotland outlined two situations: the employer hires an employee without asking about their mental health, and the candidate does not disclose; the employer does ask, but the employee has an undiagnosed mental health condition, of which they were unaware. “In both of those situations there are obligations for an employer,” according to Scotland.

If the mental health issue is not acutely serious, then the employer may be required to accommodate it. There is a legal principle that states that employers must take employees as they have hired them. “If you can accommodate those persons through providing special options, like for a period of time I’ll need to work flexible hours…it may be entirely reasonable for the employer to provide those services or facilities,” Scotland said.

However, the question of ‘reasonableness’ is a broad one and determining whether accommodations are ‘reasonable’ will depend on the individual case. Relevant factors may include the cost of those accommodations, the size of the employer and their available resources, the nature of the employee’s role, and the purposes of that role.

In the event that the mental health condition is a very serious one, the employer may be obliged to fire that employee. “If the nature of the person’s mental health condition was such that they weren’t safe, either for themselves or for others…and if there was no other way forward, potentially they might have to look at dismissing that employee on the basis of medical incapacity or straight inability to be able to provide a safe working environment,” Scotland explained.

Related story: Conflicting obligations for employers dealing with mental health

Blair Scotland's advice for dealing with mental health in the workplace:

• Tread carefully, don’t make rash decisions – they tend to go badly wrong.
• Implement good recruitment practices with appropriate pre-employment medical questions.
• Consider doing pre-employment medical screenings if the profession is a high-risk one.
• Include good clauses in your employment agreement regarding the employee agreeing to undergo a medical examination at the employer’s expense or with the doctor of its choosing.
• Gather all of the information that you can regarding the mental health issue, and how it can be accommodated within the workplace.
• Institute a good Employee Assistance Programme (EAP); good EAP providers will give you access to pragmatic advice on mental health issues and will put you in touch with clinical psychologists and psychiatrists.