Mental Health Obligations for Employers
The identification, qualification and management of threats associated with business travel are not limited to physical dangers. Comprehensive travel risk management includes mental health issues that may present as result of single or repeated exposure to situations that negatively impact the traveller. In this article, we get a legal overview of the considerations when managing mental health issues.
Employer's obligations to their employees are in a constant state of flux. The rules seem to keep changing and it can seem like the balance of power swings in favour of the employees for small business operators, who have neither the time nor the resources to continually change their process and policies to keep up date with the latest legislative changes.
As all employer would be aware, there is an overriding obligation to create a safe and healthy workplace for their employees. This means taking appropriate steps to eliminate ans minimise health and safety risk for all employees. However, this duty no longer applies solely to physical safety, but now also extends to mental health. Employers are now required to identify possible workplace practice, action or incidents which may cause or contribute to mental illness and take action to eliminate or minimise these risk. There is case law which supports the proposition that an "unhealthy" work environment or work place incident can cause significant stress results in a mental illness. The Courts, however, accept that work- related stress over long, continuous periods of time and inadequate support counseling for employees is a precursor to work-related mental illness.
Employers not only have duties imposed under the workplace heath and safety regime but also have additional obligations to ensure that an employee with a mental illness is not discriminated against or harassed because of their mental illness. An employer has a positive obligation to make reasonable adjustments to its workplace practices to meet the needs of workers with mental illness, to ensure that not only do they feel supported in their role but also that their mental illness is not exacerbated.
This all sounds like more work for the long-suffering employer but it needs to be viewed from the perspective of the benefits it can and will have for employers in the long run. The ABS statistics from the National Survey of Mental Health and Wellbeing: 2007 show that around 45% of Australian aged between 16 and 85 will experience a mental illness at some point in their life, while 1 in 5 Australian adults will experience a mental illness in any given year. This means that the majority of working Australians are at risk of developing a mental illness during their working lives. This is reflected in the courts by over 50% of all claims for psychological injury arising from work-related stress, costing over $10 billion each year in workers’ compensation claims. From the employers’ perspective, it is suggested that Australian businesses may lose in excess of $6.5 billion each year by failing to provide early intervention or treatment for employees with mental health issues.
Employees also have obligations to take reasonable care for their own mental health in the workplace and it can sometimes be a challenging balancing act for employers in a situation where the employee does not appear to be meeting its own obligations in this regard, to the detriment of the entire workforce and not run foul of anti-discrimination and harassment legislation.
Written by Kim Packer, Solicitor and practicing lawyer also with a psychology degree at Beck Legal