This month, the RUOK Day campaign prompted us at Worklogic to think again about mental health.
The employers we work with are always well intentioned – they want to support their employees through anxiety and depression, as well as other illnesses and personal crises. But how should the employer respond when the employee’s mental illness is causing behavioural issues, performance concerns, and having a negative impact on their colleagues?
Mental Illness is Normal
Let’s be clear: it is highly likely that one of your colleagues (or you) has suffered from a mental health issue in the last 12 months. BeyondBlue reminds us that one in 5 Australians experience a mental health condition in a given year, and almost half (45%) will experience a mental health condition at some point in their lifetime ;
Depression and anxiety are particularly prevalent. In Australia, it is estimated that 1 million people currently have depression and 2 million have anxiety. Only 35% of Australians with anxiety or depression access treatment.
Over 75% of mental health problems occur before the age of 25, and between 10 and 15 percent of older adults experience depression and/or anxiety.
If a colleague has a mental illness (or you suspect that they might), it is our responsibility to work with them constructively, fairly and with compassion.
For HR managers and supervisors who oversee their performance and make decisions which affect their rights and entitlements, there are additional duties.
This is a complex area, where multiple employer responsibilities can intersect:
- applying reasonable adjustments to help the employee perform their duties;
- avoiding discrimination and not subjecting them to detriment because of their illness or its symptoms;
- complying with the employment contract, policies and procedures: the employee and employer have ongoing obligations including leave entitlements, flexible working arrangements, the employee performing their duties to an acceptable standard, handling complaints made against or by the employee with a mental illness, and what happens to the employment relationship if the employee is incapable of performing the job;
- maintaining occupational health and safety: the employer’s duty to provide a safe work environment, and to ensure, as far as is reasonably practicable, that they are not exposing people to health and safety risks (this includes OHS risks to the employee who has a mental illness, as well as their colleagues);
- Workers’ compensation, if the employee makes a claim; and
- Unfair dismissal and unlawful termination laws also apply if the employee’s employment is terminated.
Employers Must Tread Carefully
Employers should keep in mind that how they handle employees who are ill is a great litmus test of the workplace culture, leadership and company values. Supporting someone with mental illness can be challenging, but it is the employer’s duty to do so – legally as well as ethically.
Without breaching anyone’s confidentiality, this might be the right time to foster, train and re-emphasise the need for tolerance and compassion amongst all employees.
In serious cases, the complexity and overlapping nature of the employer’s duties are significant, and legal advice should be sought from an expert employment and discrimination lawyer.
By way of a general introduction to some of the issues, here are some key factors for employers when considering reasonable adjustments, misconduct allegations and problems with job performance.
Australian legislation requires that employers adequately consider reasonable adjustments in the workplace for workers with mental illness. A reasonable adjustment is making changes to a job – including modified duties, working hours, locations, job rotation, modifying equipment, and other factors – which can be made to enable the worker to perform their duties more effectively in the workplace. They should be specific to the employee’s needs, and be regularly reviewed over time.
The Australian Human Rights Commission’s ‘Workers with Mental Illness: a Practical Guide for Managers’ (2010) includes some excellent material about determining reasonable adjustments.
If the mentally ill employee has made a complaint against a colleague, or complaints have been made against that employee (commonly, bullying), handle those complaints in accordance with your policies and procedures, as far as the process that is to be applied.
If the employee with a mental illness is found to have breached a policy or procedure, consider whether their illness or its symptoms have in any way contributed to their conduct. If it has, you will need to take their illness and symptoms into account when deciding on any disciplinary action that will follow. A mental illness is a significant mitigating factor – and sometimes even a complete defence – for having engaged in misconduct.
The disciplinary outcome may have to be lessened or averted, given that the employer must provide a reasonable accommodation of the employee’s illness and its symptoms (including behaviour that is caused by the illness) and it must not treat the employee less favourably because of their illness. This does not mean that ‘anything goes’ as far as the employee’s conduct in the workplace, however, the employer cannot ignore the impact on behaviour of the illness and its symptoms.
Keep in mind that any response to their misconduct in the workplace must be accompanied by clear offers of support, such as counselling or leave.
Performance of the Job
Sometimes an employee finds that their mental illness is so disruptive to their ability to function that their job performance suffers.
Where an employee’s performance is seriously failing, and their mental illness is damaging their ability to perform their job to a reasonable standard, the employer may need to performance manage that person and (if they cannot improve their performance) ultimately make a decision about whether the employee has the ability to fulfil the inherit requirements of the role. This will include the employee with a mental illness:
- performing the work at a reasonably acceptable level; and
- being in the workplace without posing an unreasonable occupational health and safety risk to people around them.
The employer may need advice and opinions from the employee’s treating doctors, and should talk in depth with the employee about their performance as well as reasonable adjustments that the employer could offer to assist.
As noted above, this is a complex area. What employers must do is pay attention to the employee, work constructively and communicate with them about their working arrangements and performance. Always be fair, helpful and clear. Never assume that the employee is the problem, or that it is the employee’s responsibility to ‘just get the job done’.
Remember that mental illness is very common. Maintaining a fair workplace that promotes positive mental health, and applies compassion and fairness to those who are ill, will build a positive workplace culture and enable everyone to bring their best to work.
There are some excellent resources available for employers who wish to promote positive mental health and wellbeing. They include:
• The Victorian Workplace Mental Wellbeing Collaboration and its collection of resources, case studies and videos
 Australian Bureau of Statistics. (2008). National Survey of Mental Health and Wellbeing: Summary of Results, 2007 (4326.0). Canberra: Australian Bureau of Statistics.  Australian Bureau of Statistics (2008), as above.  Australian Bureau of Statistics (2008), as above.  Kessler, RD et al. (2005). Lifetime prevalence and age-of-onset distributions of DSM-IV disorders in the National Comorbidity Survey Replication. Archives of General Psychiatry, 62: p 593-602  National Ageing Research Institute. (2009). Depression in older age: a scoping study. Final report. Melbourne: beyondblue. See also https://www.beyondblue.org.au/about-us/research-projects/statistics-and-references?sec=sec.dep
About Rose Bryant-Smith
Rose Bryant-Smith is the co-founder and director of Worklogic. She is passionate about building ethical, productive and innovative workplaces. Rose leads projects about organisational ethics, risk management, corporate governance and organisational performance.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work.
If you need advice and strategies to manage employees with mental illness at your workplace, please contact Worklogic.
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