For a person experiencing a mental health condition, they should be provided with an equal chance to do the job as anyone else, as long as they are able to fulfil the inherent requirements of that job. This could include the ability to meet productivity and quality requirements, work effectively within the team, and be able to work safely.
Laws which protect people with a mental health condition in regards to discrimination apply in the following areas:
- During the recruitment process, including advertising, interviewing and other selection procedures.
- In deciding who will get the job.
- When negotiating terms and conditions of employment, such as pay rates, work hours and leave.
- In determining promotion, transfer, training and other benefits associated with employment.
- In the dismissal, demotion or retrenchment process.
Employers are not only required under the law to not discriminate, they are also required to make small changes to the work environment to ensure that an employee with a mental health condition can productively perform the functions of a job.
Some examples of how this might be practically implemented include:
- Allow an employee to vary their start and finish times.
- Allow short breaks when a worker needs to clear their head.
- Provide a checklist of tasks to be completed.
In many of these scenarios, the employee will be able to offer guidance to the employer about what specific changes are necessary to allow them to perform their job.
While efforts can be made to support an employee with a mental health condition, an employer is not obliged to implement them should it impose an unjustifiable hardship on the business or organisation.
However an employer may decide it makes good business sense to make temporary adjustments for an employee unable to meet the role’s inherent requirements so as to retain their valuable skills and experience.
Other areas where an employer has obligations towards employees with a mental health condition are privacy (Privacy Act 1988 (Cth)) and harassment (Disability Discrimination Act 1992 (Cth)). An employer is not legally allowed to disclose that an employee has a mental health condition without permission. In addition, employers are required to prevent harassment – including physical and verbal abuse - to an employee experiencing a mental health condition.
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