Originally published by NB Lawyers Jonathan Mamaril.
Managing mental illness in the workplace is difficult for any employer and management team.
When dealing with complaints of mental illness in the workplace, from an employment law perspective, it seems to be categorised into three areas:
- Disclosure of mental health issues either involving work or not involving work
- During a performance management process; and
- During an investigation and misconduct proceedings.
Disclosure of Mental Illness
According to SafeWork NSW, 91% of workers compensation claims involving mental illness is from work related stressors – when reading this statistic, there is definitely a trend towards more work related mental illness. When discussing disclosures of mental illness with employers the problems seem to surround several significant issues.
The Employer’s Reaction
Firstly, the reaction by the employer to a disclosed mental illness such as stress, anxiety or depression and adversely affecting someone’s employment because of the disclosure of a mental illness will enliven litigious opportunities for employees. In a snapshot, they may well be:
- Workers Compensation applications;
- General Protections application;
- a discrimination application;
- (if dismissed) an unfair dismissal application; and
- Breach of Contract.
Secondly, what is important to understand about an Employer’s reaction to the disclosure of mental illness would be the adjustments to be made. Importantly, will there be any unjustifiable hardship in making adjustments and are they reasonable.
In some circumstances, there may well be some flexibility in the workplace required such as less hours worked or time off. In other circumstances, it may even require the help of a psychologist or psychiatrist to ensure that the employee is “okay” and can undertake and perform the work that they are employed to do.
It is important for employers that if mental illness is disclosed to them the reaction is:
- aligned with the values of the business; and
- compliant with policies and processes of the business;
Thirdly, for Employers to contemplate, is whether the disclosure of mental illness may lead to issues under Workplace Health and Safety legislation. In particular, whether the mental illness will have the effect of endangering the health and safety of the employee themselves or others in the workplace. Employers who employ workers as truck drivers or employees operating heavy or dangerous machinery need to be alert to these factors. A medical certificate or even a report from a medical professional may be required to ascertain whether that employee is fit to undertake the duties of the position.
Employers who have in their employ those in caring positions such as aged care or health may well need to consider whether any medication taken has an affect (if any) on the employee’s ability to undertake work in a safe manner. A specialist medical practitioner may be required to give a clearance.
Lastly, another factor to consider is whether the adjustments to be made in the workplace are reasonable adjustments. Although commercial considerations are a factor they are not the only factor.
Another issue that is becoming prevalent for employers and HR managers and officers to deal with is the issue of mental illness being brought up in the process of performance management.
Performance management can be summarised briefly in most circumstances as follows:
- discussing performance issue with the employee;
- discussing the standard of work;
- discussing the short fall (if any) and giving the employee the opportunity to respond;
- what improvements will be required and setting out a potential performance improvement plan; and
- the timeline for improvement.
Employers are (justifiably) timid in taking further performance management action against an employee because they have disclosed a mental illness. With grave concerns around a potential general protections application, discrimination application or a Workers Compensation claim.
These are two separate issues. The mental illness and disclosure should be dealt with as per above, however, the performance management should be dealt with in a separate setting.
We always recommend to clients to have two separate meetings and try to avoid crossover between the two. That is not to say that the mental illness might play a part in the performance management issues especially if it manifested from personal issues that have occurred to the employees such as a death, birth of children or divorce but to keep these as separate as possible.
What can be helpful in the performance management of employees in these circumstances are solid policies and processes that deal with managing the performance of an employee.
Remember policies are organic documents, and as long as:
- an employer does not insert into policies anything that is unlawful or unreasonable;
- they let the employee know that the policies are actually in place; and
- for more complicated policies training is involved.
Then policies and procedures can be utilised, and more importantly unilaterally changed by an employer. That is, policies and procedures if drafted correctly, and if the employment contract is drafted correctly would not vest an enforceable right for the employee and instead form reasonable and lawful directions for employees.
Policies as organic documents set out:
- Expected standards, behaviour and conduct
- Conditions of employment
- statements of purpose
- ‘common sense’
- Unique and/or ‘unspoken rules of the organisation’
Examples of relevant policies could include:
- Code of conduct
- Discipline procedures and policy
- Performance Management
- Leave and leave entitlements
- Bullying and discrimination
- Workplace health and safety
- Performance management during a period or reasonable management action
The last situation where complaints around mental illness potentially become a problem are during an investigation or misconduct proceedings.
When an employee engages in alleged misconduct such as:
- Failing to follow a reasonable and lawful direction
- Disclosing confidential information
- Bringing the company’s reputation into disrepute
- Engaging in workplace bullying
- Sexually harassing a fellow employee; or
The normal process to mitigate risk and provide procedural fairness and natural justice would be to at least put the allegations to the employee to explain their actions. Usually by way of a show cause letter or a meeting of a similar vain.
When mental illness is brought up as either a factor in the:
- Misconduct occurring; or
- Show cause process or the workplace investigation itself manifesting a mental illness; or
- Show cause process leading to a claim for workers compensation.
It has the ability to derail the process. However, the recommendation in most cases is to simply slow down the process and keep the issues separate. One way to continue the show cause process would be to write to the medical professional who has provided you with information about the mental illness and ask if they are fit to continue the show cause process, for example receive the show cause letter or respond to it. That way, there is medical opinion as to whether an employee can continue in part or all of the process.
In the alternative, you may need to get alternative medical opinion to satisfy s 107 of the Fair Work Act 2009 (Cth), that is, the employer can request further information about the illness.
In practical terms, Employers have the ability to take reasonable managerial action especially in regards to misconduct.
Top Tips for Employers
- Difficult as it is, a reaction to a disclosure of mental illness must be measured – consider the types of applications such a disclosure can lead to such as general protections claims or discrimination claims
- Consider having a policy in regards to dealing with mental illness in the workplace especially in circumstances where an employee is being performance managed or a workplace investigation is underway
- Can reasonable adjustments be made to accommodate the employee with mental illness? If not, why not?
In circumstances where you are taking action against an employee who has mental illness what medical opinion do you have that supports their view or alternatively – if required do you have medical evidence to support an alternative view of the diagnosis.
About the Author: Jonathan Mamaril
Jonathan Mamaril is the Director at NB Lawyers – Lawyers for Employers, he leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.