Mental Health and the Workplace

An estimated one in five adults in Australia experiences a mental health condition each year. Employers and potential employers need to ensure that employees and potential employees are appropriately supported to manage their mental health. This means providing a workplace and working conditions that promote mental health, not discriminating against employees or applicants on the basis of mental illness and keeping information that has been disclosed about an employee’s mental health conditions private and confidential. This page deals with mental health in the workplace in Australia.

Promoting mental health in the workplace

Employers and managers need to be aware that many of their staff will be living with mental health conditions. Some mental health conditions may be developed outside of the workplace, while others may be caused or exacerbated by an incident at work or by an unhealthy work environment.

Employers and managers need to identify workplace practices, incidents, and actions that may be detrimental to the mental health of their workers and seek to minimise these risks. Maintaining a safe and healthy work environment improves productivity and ensures compliance with the law. It can also reduce costs and help the company or organisation to avoid industrial disputes.

The Australian Human Rights Commission has produced a best practice guide to assist employers and managers to better understand and support workers who are living with mental illness and to support employers to ensure a safe and healthy work environment.

Anti-discrimination legislation

Antidiscrimination legislation exists at federal, state, and territory levels. This legislation includes protections against discrimination on the basis of physical and mental disability, including mental illness.

Under section 351 of the Fair Work Act 2009, it is unlawful to discriminate against an employee or prospective employee on the basis of a prescribed attribute. One of those attributes is physical or mental disability. This means that national systems employees are protected against discrimination on the basis of a mental illness under this provision.

State and territory anti-discrimination law also includes protections against discrimination on the basis of physical or mental disability. If a person is not a national system employee, they may rely on the protections of the state or territory anti-discrimination legislation.

Workplace health and safety laws

The Commonwealth Work Health and Safety Act 2011 applies to all national system employers. Under this act, employers have a duty of care to ensure the health and safety of workers insofar as is reasonably practicable.

What is reasonably practicable is to be assessed with reference to:

• the likelihood of the hazard or risk
• the degree of harm that might result from the risk
• what is known, or ought to be known, about the risk and how to eliminate it
• the availability of ways to eliminate or minimise the risk.

Workers who are not national system employees are covered by state and territory workplace health and safety legislation, which contains comparable provisions.

Workplace bullying and sexual harassment

Bullying and sexual harassment are unlawful under the Fair Work Act 2009 and other legislation.

Bullying occurs when a person or persons behave unreasonably towards a worker or group of workers and this behaviour causes a risk to health and safety. This may include aggressive behaviour, teasing, practical jokes, excluding a person from activities or making unreasonable performance demands.

Sexual harassment occurs when a person makes an unwelcome sexual advance, request for sexual favour or other sexual behaviour under circumstances where it is reasonable to expect that the person may feel offended, humiliated or intimidated.

Employers have a duty to provide a workplace that is free from bullying and sexual harassment. When bullying or harassment occurs at work, it may give rise to, or worsen, mental health conditions.

Privacy laws

When an employee or potential employee discloses information about their mental health to an employer, the employer must keep this information confidential.

Employers who are covered by the Privacy Act 1988 must comply with the provisions of that Act, including following the Australian Privacy Principles, which require employers to have a privacy policy. Employers should ensure that this policy is comprehensive and up to date and that all employees have read and understood it.

Employers who are not covered by the Privacy Act 1988 should nonetheless refrain from disclosing private information about employees, except where required to do so by law.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.