Conflicting obligations for employers dealing with mental illness

Employers dealing with employees suffering from mental illness face conflicting obligations under OHS law and anti-discrimination law – as demonstrated by a recent Employment Relations Authority (ERA) decision.

In the ERA case, a man with bipolar disorder was employed as a security guard at a factory containing many dangerous chemicals, but was then sacked because he had not disclosed his illness to his employer before he was hired. His illness came to light when he provided his employer with a medical certificate from the Auckland Mental Health Crisis Team.

The man argued that, under the Human Rights Act, he didn’t have to disclose his illness and that, had he done so, he would not have been hired in the first place. He also argued that the company’s job application, which asked about pre-existing medical conditions, was a breach of the Privacy Act.

The ERA found the man’s failure to tell his employer about his condition put him at risk in a potentially dangerous job – and also left the company in a situation where it was unable to make an informed decision on how best to protect him, as it was obligated to do. However, it also found the man’s dismissal was unjustified because the company had not followed correct procedure when dismissing him.

The tensions between an employee's right not to be discriminated against and an employer's obligation to provide a safe workplace were illustrated by the case, employment lawyer Blair Scotland from Chen Palmer told the New Zealand Herald. “It raises very difficult questions for someone suffering from a mental health condition. What do they do: do they disclose, and then face being discriminated against? It's a hard decision from both perspectives.”

Ultimately, the ERA’s decision turned on the nature of the role, Scotland said. “The company might not have had grounds to dismiss the man in a less dangerous role, like an office job, but he was in sole charge in a dangerous role.”

It was right that employers were called to account when their response to employee unwellness was clearly disproportionate, as in this case, Mental Health Foundation chief executive Judi Clements said. “However, the ERA’s decision not to award remedies highlights the dilemma many employees face when deciding whether to disclose a mental illness on a job application… when they fear that they will be discriminated against and not offered a position they are qualified for.”

However, such disclosure can help employers – who have a legal responsibility to ensure their workplace is a healthy one, as well as to make reasonable accommodation after disclosure – to better support an employee, she said. “An appropriate response to their employee’s needs can not take place without prior knowledge of what these needs may be.”

Cases like this one highlight the need for more work to be done to ensure that people with mental illness are ready to disclose their illness, and that employers know their legal accountabilities and have a greater understanding about creating mentally healthy workplaces, Clement added.

Key HR takeaways:
 

• Develop and implement a comprehensive mental health policy – and communicate that policy to all staff.
   
• Promote a workplace culture which is open about mental illness and supportive towards those who suffer from it.
   
• Monitor staff stress at work and provide staff with stress management training, as well as training on how to recognise mental health issues.
   
• Ensure there is time for staff to feedback how they are feeling in meetings or at reviews and appraisals.
   
• Provide information about your company EAP programme.
   
• Encourage clear, open and honest communication.
   
• Monitor working hours and ensure staff take their lunch breaks.
   
• Arrange occasional team building events and staff functions.
   
• Where possible, offer flexible working arrangements.
   
• Be positive about reasonable adjustments.