Failing to meet your obligations when supporting employees’ mental health at work could lead to onerous legal claims. These strategies can help to ensure you comply.

It’s been said time and time again that mental health is now more important in Australian workplaces than ever before. Businesses are becoming more attuned to how cultures and structures that are supportive of mental health can improve productivity. 

Organisations found wanting in this regard can face onerous legal claims. While many employees are increasingly eschewing traditional workspaces, either due to COVID-19 restrictions or technological advances, employers still have obligations to support the mental health of employees working remotely.

As remote work cuts out commute time and often reduces the need to dress formally for work, employees may have initially found remote work more convenient and less stressful.

However, as hybrid work shows little sign of abating, employers have increasingly realised the psychological impacts of prolonged isolation and lack of routine. The challenges of home-schooling, financial and health pressures, and a blurring between work and home boundaries also came to light.

The most recent lockdown restrictions compounded mental health issues. We note that:

• One in five Australians report high levels of distress resulting from the pandemic
• The four busiest days in Lifeline’s 57-year history all occurred in August 2021

Poor mental health in the workforce amounts to the Australian economy losing approximately $12 billion per year in reduced productivity and work absence.

Legal obligations of employers

Before implementing strategies to meet your legal obligations, it’s essential to understand employers’ work health and safety obligations, and what constitutes direct and indirect discrimination at work.

Work Health and Safety

Australia’s work health and safety laws such as the Work Health and Safety Act 2011 (NSW) impose a primary duty on persons conducting a business or undertaking (PCBU) to ensure, as far as reasonably practicable, the health and safety of employees, and others engaged in work for the organisation such as contractors and trainees. This primary duty still applies when the work is done remotely.

The duty also extends to the elimination of physical and mental risks to health and safety, or to the minimisation of risks if elimination is not reasonably practicable.

Importantly, this duty extends beyond the ideal employee who takes perfect care of their physical and mental health at work. PCBUs must take reasonably practicable efforts to proactively protect employees who may be careless, inattentive and make inadvertent mistakes.

Whether it is reasonably practicable to eliminate a risk to mental health in the workplace depends on factors such as the likelihood of the risk, the presumptive harm, the potential means of eliminating or minimising the risk and their likely associated costs.

WHS laws also impose a duty of due diligence on officers and directors of PCBUs to proactively ensure that the PCBU complies with its WHS duties and obligations. Officers and directors can be personally liable for non-compliance with this separate duty.

It is also not enough for PCBUs to wait for employees to raise workplace health and safety concerns. It should be reasonably practicable for PCBUs to take active measures to regularly check on employees at home, openly discuss and then try to mitigate any mental health concerns.

Disability Discrimination

Direct and indirect disability discrimination is prohibited by state and federal anti-discrimination laws.

Direct discrimination occurs when an employer treats someone less favourably because of a disability, whereas indirect disability discrimination occurs when an employer imposes a requirement, condition or practice which, because of their disability, the aggrieved person cannot comply because:

• the requirement or condition does or will likely disadvantage persons with the disability; or
• the employer fails to make reasonable adjustments that would allow the aggrieved person to comply.

Direct discrimination may occur when an employer refuses to employ someone, or dismisses someone, because of a mental illness. Indirect discrimination may occur when an employee must comply with a general policy – for example, to start work at 7am, when the effect of medication they take to manage a mental illness means they cannot be alert so early in the day.

It is not disability discrimination to dismiss a worker that cannot complete the inherent requirements of the role due to their disability, where no reasonable adjustments will allow them to do so. The legality of such a decision will depend on the role and the disability.

While an IT professional might have their 7am start time adjusted to reasonably account for their disability, this might not be feasible for a baker or flight attendant.

Brush up on how to support employees’ mental health with AHRI’s short course, Mental Health at Work. Book in for the next course on 3 May, or enquire about a customised course to meet your organisation’s needs.

Strategies for employers

To comply with their duties, employers can consider a range of strategies:

1. Educate employees on important steps to support mental health while working remotely (such as frequent breaks and reasonable sign-off times) and implement strategies to support them (such as hosting social events, and regularly checking in).
2. Acknowledge that employees may still experience some adverse mental health effects during prolonged periods of remote work and facilitate a safe forum to enable employees to feel comfortable raising these issues.
3. If these issues are raised, have an informal conversation with the employee about their mental health and any reasonable action the employer can take to support the employee who is struggling and their team, who may be impacted.
4. If appropriate, suggest having a collective discussion with the employee’s GP or psychologist to understand their current condition, their role and any adjustments.
5. If they are not receiving support from a GP or psychologist, gently suggest that they do so.
6. If they refuse to see a GP or psychologist, it may be a lawful and reasonable direction for an employee to undertake an independent medical examination.

These options aim to understand any mental health condition of the employee and enable reasonable adjustments. Employers must work closely, and in consultation, with medical professionals whenever decisions are being made in relation to an employee’s mental health.

If an employee’s mental health conditions continue to affect performance, consider whether they can perform the inherent requirements of the role. Keep detailed records of correspondence seeking to understand their condition, their performance and potential reasonable adjustments.

Managing mental health in the workplace is challenging and time-consuming for employers and can give rise to legal claims. Employers are therefore advised to seek specialist legal advice.

Emma Pritchard and Jenny Innes are Executive Counsels, and Zeb Holmes is a Lawyer, at Harmers Workplace Lawyers.