31 August 2018


What’s on your Mind?: Mental Health in the Workplace

Rocio Paradela, Graduate Associate and Daniel McNamara, Graduate Associate

Mental health issues can have a resounding impact on productivity, performance and culture within workplaces of all sizes and industries. Approximately 21% of Australian employees have taken time off in the past 12 months for mental health reasons and this has a significant impact not just for the employees, but their colleagues, managers and the rest of the workplace.The effect that mental health conditions, such as depression and anxiety, can have on Australian business is estimated as being approximately $11 billion per year1. This calculation is based on figures for absenteeism, presenteeism, reduced work performance, increased turnover rates and compensation claims.

Legal implications

From a legal standpoint, employers owe a number of obligations to employees regarding their psychological health at work.

Under work health and safety legislation employers must provide a safe and healthy workplace and take action to eliminate and minimise any potential risks to the health and safety of all employees and those present at the workplace. This is not confined to the physical environment but extends to psychological impacts as well.

In relation to mental illness, the obligations include:

  • identifying possible workplace practices, actions or incidents which may be causing, or contributing to poor outcomes for workers in terms of their mental health; and
  • taking actions to eliminate and minimise those risks.

Under state and federal anti-discrimination laws employers have an obligation to make reasonable adjustments for employees with disabilities to enable them to perform the inherent requirements of their job. Examples of such adjustments include offering flexible working options or changing aspects of the workplace arrangements or practices. However, an adjustment is not required if it would impose an “unjustifiable hardship” on the employer, or the employee would not be able to perform the inherent requirements of the job even with such adjustments.

The Fair Work Act 2009 (Cth) also provides protection for employees with mental health illness from adverse action taken by an employer because of their disability. Potential forms of adverse action include dismissal, refusing to employ a prospective employee or discriminating against an employee.

Responding at the workplace level

There is no “one size fits all” approach to implementing strategies that promote a mentally healthy workplace. Common organisational responses include:

  • Employee Assistance Programs;
  • flexible work arrangements;
  • policies which address mental health issues; and/or
  • mental health leave (via personal leave and/or the implementation of mental health days).

These types of strategies are designed to assist employees to manage their mental health issues and, more broadly, to enhance the prospect of a healthy workplace.

On a more individual level, a commitment by employers to properly address the mental health issues of their employees is fundamental, not only in employers meeting their legislative obligations, but also for all employees to flourish in their employment. Employers should ensure that the needs of employees who are experiencing mental health issues are understood, that the impact of workplace practices on these issues are monitored, and that employees receive the support they require. This may necessitate adjustments being agreed to between the employer and employee, and efforts made to keep under review workload distributions, hours and leave arrangements.

Key takeaways

We recommend that employers consider the following dos and don’ts in their approaches to mental health in the workplace:

Do:

  • Observe and monitor changes in employees’ behaviour
  • Foster help-seeking
  • Work constructively with employees who have mental health issues
  • Show empathy to employees requiring support
  • Create open channels of communication

Don’t:

  • Tolerate a poor workplace culture
  • Rely on performance management as a means of dealing with mental health issues
  • Make presumptions about the perceived capabilities or weaknesses of employees with mental health issues
  • Treat employees differently as a result of their mental health status

1.  Blackdog Institute and beyondblue (2016), “Developing a mentally healthy workplace: A review of the literature”, Report prepared for the National Mental Health Commission, Sydney.


Posted in Legal Tips.
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