Mental health is a private matter, but it can’t always stay that way when it’s impacting an employee’s performance at work. What should you do if you feel you need to direct a worker to take mental health leave.
Mental health issues in the workplace are becoming common – or perhaps they’re just more visible than before.
But given our belief that mental health is a private matter, it’s challenging for employers to know where the legal duty lies to take reasonable care for employees, what options they have available to them to proactively manage mental health issues, and the risks associated with inaction.
What’s an employer’s duty?
An employer’s duty is to ensure the workplace is, as far as reasonably practicable, safe for workers and the public.
Employers also have an obligation not to unlawfully discriminate against workers on the ground of a disability which includes someone’s mental health conditions.
Treating someone differently because of their disability, or failing to make reasonable adjustments to accommodate their condition, could result in claims under disability discrimination legislation, or a general protections claim for adverse action under the Fair Work Act.
Directing leave employees to take leave
When thinking about asking someone to take mental health leave, first and foremost avoid making assumptions. You can’t assume an employee has a mental health problem, or that it means they can’t perform their role. For some people, being at work could lift their mood and give them a sense of meaning.
Read HRM’s article ‘Staying at work is sometimes the best thing for mental health.’
Employers need to remember they’re not doctors and are not medically trained to determine whether someone is mentally or physically fit to meet the inherent requirements of their role.
Instead, it’s important to ensure that managers are trained to identify the red flags of poor mental health and to engage employees in conversations when those early warning signs are raised.
If an employee confirms they have a mental health condition or are struggling with work, and their manager is concerned, then it’s important for the manager to consider reasonable action the business may take to support the employee.
Such actions might include agreeing on a reduced number of hours, changing start times, or reducing the workload either indefinitely or for a period of time.
It may also be appropriate to have a discussion with an employee’s GP or other health provider to better understand the employee’s condition, how it impacts on their role and possible adjustments.
If an employee refuses to discuss the situation or provide medical information (or the information provided is too vague), it may be appropriate to issue a lawful and reasonable direction for an employee to undertake an independent medical examination.
It’s always best to provide for such a possibility in an employment contract under a fitness-for-work clause so it doesn’t come as a shock.
If the employee’s mental health condition has been caused by work, or is being exacerbated by the workplace or work hours, then the employee may have a right to submit a workers’ compensation claim.
If such a claim is brought, it’s not just a case of making reasonable adjustments to avoid discrimination claims; it’s also necessary for employers to ensure compliance with legal requirements, such as return-to-work plans and injury management.
Employers may also need to consider whether they need to conduct an investigation to investigate hazards in the workplace which may be creating a risk to health and safety.
This article first appeared in the September 2022 edition of HRM Magazine. Jo Alilovic is an employment lawyer and Director of 3D HR Legal.
Employment law is a constantly evolving subject. Make sure you’re up to speed with AHRI’s Introduction to HR Law course. Sign up for the next session on 25 October 2022.
To the best of my knowledge, the first important concern for some employees especially those with a disability plus from diverse backgrounds might be a financially secure future, not a sense of the meaning of the job, it might be a good idea to compensate them enough and they will find a way to have a meaningful job in a proper time, I would say just compensate them massively instead of (with respect) a silly return to work plan with trial and error!
In my experience when people are experiencing poor mental health, they need structure and clear direction, it helps them to focus, they can also get a sense of accomplishment when they complete a specific task. In depression, communication an decision-making are big challenges. I have supported a few staff when at very low ebb – give them clear and simple tasks to begin with and build from there, play to their strengths and avoid overloading them with information. I have also advised managers with staff experiencing serious mental health issues, fundamentally people have to be able to perform their role,… Read more »