Knowing mental ill-health risks and requirements

There can be specific legal requirements related to making reasonably practicable adjustments to help workers manage mental ill-health in the workplace. Meeting these requirements is not only the law, it also makes good business sense. 

Each employer and worker has a responsibility to determine the exact nature of their obligations through seeking professional advice.

Employer responsibilities 

Employers have legal responsibilities under work health and safety, workers compensation, anti-discrimination and equal opportunity and privacy laws. 

• Work health and safety legislation requires that workplaces use best practices to eliminate or minimise risks to health and safety, including psychosocial hazards. Workplaces have a duty to identify health and safety risks, and take action to prevent these or (if that is not possible) reduce their impact on psychological and physical health in their workplace. Visit Safe Work Australia or see the Identify and manage mental health risk module for more detail.
• Workers compensation legislation creates requirements for workers to be compensated for injuries that occurred in the course of work. It can also create requirements to support people to return to work and make reasonable adjustments to support a worker to stay at work while they recover from a work-related injury. See Safe Work Australia for more information about workers compensation in your jurisdiction.
• Anti-discrimination and equal opportunity laws across the Commonwealth, state and territories define mental illness as a disability, and prohibit discrimination against a person with a disability in employment. Under this legislation, employers must not treat workers with a mental illness unfairly, and must make reasonable adjustments to allow the worker with a mental illness to perform the requirements of their job. Visit the Australian Human Rights Commission for more information.
• Privacy laws across various jurisdictions protect the privacy of workers. Workers are not legally obligated to disclose information about their mental ill-health; they can choose to keep this information private, provided it does not impact on their ability to perform the fundamental requirements of the job. If a worker discloses information about their mental health, employers have legal responsibilities around handling and disclosing this sensitive information. Information about a person’s mental ill-health cannot be shared without their consent unless they are at risk of harming themselves or others. Employers should understand their obligations under privacy legislation. (See the Office of the Australian Information Commissioner for resources.)

This is an overview of legislation that may apply in your workplace. Each workplace is obliged to ascertain the relevant legislation that applies to its situation. 

All employers have legal responsibilities relating to mentally healthy and safe workplaces. It is important to know what laws apply to your organisation and take positive action. 

Worker responsibilities 

Workers also have legal responsibilities. Under work health and safety legislation, workers must take reasonable steps to look after their own safety, as well as others around them. They must also comply with policies and procedures at work. If their experience of mental ill-health could potentially impact health and safety in the workplace, they should advise their employer. For example, if trying a new medication that can affect fatigue levels, operating heavy machinery is unadvisable while the medication is trialled. 

Workers must also be able to complete the requirements of their role. This may mean seeking treatment or support for any health condition that affects their ability to carry out the duties of their role. 

If workers do not disclose an experience of mental ill-health, and their symptoms impact their work performance, they risk being performance managed or losing their job. Being able to access reasonable adjustments or additional support may be one of the benefits of disclosing an experience of mental ill-health to an employer. 

Workers also have legal responsibilities relating to mentally healthy and safe workplaces. If you don't know what your responsibilities are, ask your manager. You could suggest some training to make sure everyone know what they have to do. 

Enhancing awareness and capability 

It can sometimes be challenging to identify what legislation may apply to a situation, or how to simultaneously manage performance and provide support. 

This challenge can sometimes lead managers to ‘watch and wait’ or do nothing. However, this approach can lead to:

• increased likelihood that small difficulties becomes worse
• work health and safety risks
• negative impacts on others in the team or workplace
• a missed opportunity to provide support and early intervention. 

A proactive management approach is always best. 

To build capacity of people in your workplace to respond in an appropriate and compliant manner, you could consider offering additional training on mental health for managers and workers. This training can help people with everything from responding in a crisis through to helping people stay at work during periods of mental ill-health. These skills can help the organisation and broader teams as well as the supporting the individual experiencing mental ill-health.