What are my rights?

While employers have a number of legal obligations, they do have the right to ask certain questions about an employee or potential employee’s mental health condition.

Where more information about a condition is legitimate, necessary and desirable, an employer is permitted to ask an employee or potential employee for details. 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.

If you’re an employer in this position, the overall test is whether your 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.

If you do ask your employee for information, you must maintain confidentiality and protect his or her right to privacy. This means protecting the information against improper access and disclosure.

What are my responsibilities?

Providing equal employment opportunities

Under the Disability Discrimination Act 1992 (Cth), it is illegal for an employer to discriminate against someone on the grounds of disability – including a mental health condition.

This means you, as an employer, must offer equal employment opportunities to someone with a mental health condition. If a person can fulfil the ‘inherent requirements’ of the job, he or she should have just as much chance to do that job as anyone else. These inherent requirements will be different for each role and include the ability to perform core tasks, work effectively with the team and work safely.

These laws against discrimination apply:

  • 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.

These laws also apply to contractors and parties to a partnership agreement. They govern the actions of employers, employment agencies, federally-registered trade unions and bodies with control over professional, trade or occupational qualifications.

 


Making reasonable adjustments

For many people experiencing a mental health condition, small changes to the working environment will be enough to ensure they have an equal opportunity to perform the requirements of the job.

If you’re an employer, you’re required by the Disability Discrimination Act 1992 (Cth) to make reasonable adjustments so that a person with a mental health condition can productively perform the functions of a job.

This might include:

  • adjustments to work methods or arrangements, including hours of work and use of leave entitlements
  • adjustments to the workplace or work-related premises, equipment or facilities
  • adjustments to work-related rules or modifications to enable a person to comply with rules as they exist.

The individual situation will dictate what kinds of adjustments are reasonable in the circumstances. In most cases, the employee involved will be able to identify what changes are required. If the requested adjustments would impose unjustifiable hardship on your organisation or change the role’s inherent requirements, there is no obligation to implement them.

The Australian Human Rights Commission has developed a brief guide to the Disability Discrimination Act 1992 (Cth). 

Providing a safe and healthy workplace

Under each state and territory’s work health and safety legislation, there are obligations to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace, such as visitors and customers. ‘Health’ is defined in the Work Health and Safety Act 2011 as both physical and psychological health.

The employer, or person in control of the business, should ensure health and safety so far as is reasonably practicable by:

  • providing and maintaining a work environment without risk to health and safety
  • providing and maintaining safe systems of work
  • monitoring the health of workers and the conditions at the workplace
  • consulting with workers and their representatives on work health and safety matters
  • providing information, training, instruction and supervision so workers can safely perform their work activities.

At the same time, there are obligations under work health and safety legislation for workers and all other people within a workplace. Under the Disability Discrimination Act 1992 (Cth), an employee’s ability to work safely is an 'inherent' or essential requirement of any job. If an employee’s mental health condition could reasonably be seen to cause a health and safety risk for other people at work, then failing to disclose that risk could be a breach of their obligations under work health and safety legislation.

Common risks to mental health in the workplace include job stress, bullying and harassment, and workplace trauma. Risks should be actively managed by eliminating or minimising the risks, so far as is reasonably practicable.

Reasonably practicable means actions which are reasonable, or were at a particular time, taking into account all relevant matters including:

  • the likelihood of the risk occurring
  • the degree of harm that might result from the risk
  • what is known about the risk and ways of eliminating or minimising the risk
  • the availability and suitability of ways to eliminate or minimise the risk
  • after assessing the risk, the cost associated with eliminating or minimising it, including whether the cost is grossly disproportionate to the risk.

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Download Safe Work Australia's

reasonably practicable guide

 

Protecting an employee’s privacy

Under the Australia-wide Privacy Act 1988 (Cth) and similar legislation in some states and territories, employers must observe confidentiality and respect the privacy of each employee. This means that an employee’s mental health condition can’t be shared with anyone without his or her permission. Any information can only be used for the purposes for which it was disclosed, such as arranging  adjustments in the workplace to support the employee.

Communicating any adjustments to working conditions is a balancing act. Employers need to keep the team sufficiently informed about the changes, without compromising the privacy of the employee. 


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.