Improving workplace mental health is in everyone's interests, and we all have a role to play. Both employers and employees have formal rights and responsibilities under discrimination, privacy, and work health and safety legislation.

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    Things to know

    • Discrimination

    • Healthy and safe workplaces

    • Privacy

     

     

    Information for employers

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    Asking questions

    Employers have the right to ask certain questions about an employee or potential employee’s mental health condition where it is legitimate, necessary and desirable. This may be:

    • to determine whether the person can perform the inherent requirements of the job
    • to identify if any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment and role
    • to establish facts for entitlements such as sick leave, superannuation, workers’ compensation and other insurance.

    The overall test is whether the employers enquiries are for a ‘legitimate’ purpose. For example, it might be legitimate to ask an employee questions about their medication if the job involves operating machinery.

     

    Making reasonable adjustments

    Reasonable adjustments are changes to the workplace or an employee’s role to help them stay at or return to work after an absence. These changes can be temporary or permanent, and are required by law as long as the employee can fulfil the core requirements of the job – the elements that can’t be altered.

    It also makes good business sense (e.g. to retain skilled/experienced staff) to make temporary adjustments for staff, even if they cannot meet the core requirements of their role. However, this is not a legal requirement. 

     

    Find out more about helping others stay at work

    "Mental health can affect anyone at any time. Every workplace has a duty of care to do what they can to support employees by offering access to professional assistance, and a level of understanding as they work through this issue."

    Debbie

    Preventing harassment

    The Disability Discrimination Act 1992 (Cth) also requires employers to prevent harassment to an individual experiencing a mental health condition, including physical and verbal abuse.

    In practice, this means it’s important to be proactive in identifying conflicts, gossip and bullying in the workplace, and act quickly to resolve any issues.

    Resources

       

     

     

    Information for employees

    If your mental health condition does not affect how you do your job, you have no legal obligation to tell your employer about it. This applies whether you are a current employee, or a potential employee going through the recruitment process.

    WH&S laws protect your right to a safe workplace, but you also have responsibilities under the same legislation. You must take care of yourself and others and cooperate with your employer in matters of health and safety. This applies to all workers, whether they have a disability or not.

    As well as this, under the Disability Discrimination Act 1992 (Cth) your ability to work safely is an 'inherent' or essential requirement of any job. If your disability could reasonably be seen to create a health and safety risk for other people at work, then your failure to tell anyone about that risk could be a breach of your obligations under WH&S legislation.

     

     

     

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