Ministry of Health statistics confirm that during 2016, 169,454 people accessed mental health services in New Zealand. The law of averages suggests that most workplaces will – to a lesser or greater degree – be affected at some time by an employee’s mental health issue.
The Health and Safety at Work Act 2015 requires that workplace health and safety risks, including risks to mental health, are identified and managed by an employer as far as is reasonably practicable. Workplace risks that can affect mental health commonly include stress, fatigue or another person’s behaviour such as bullying. Equally, the behaviour of a person affected by mental health can affect the mental health of others.
Mental health issues may not always be obvious. A person may experience symptoms of a mental health issue without necessarily having a diagnosable mental health illness. In some cases, the employee may be unaware of any illness. Where a person is suffering from ill mental health, he or she may be unwilling to disclose any private, medical information to an employer for fear of stigma or other reasons.
Poor mental health may be noticed by an employer through a change in an employee’s usual behaviour. This could include decreased performance, increased sick leave or excessive absenteeism, tearfulness, aggressiveness or other changes to mood or attitude, or evidence of substance abuse. These potential signs, if observed by the employee’s manager or peers, would allow the employer to raise any legitimate concerns with the employee as a work performance issue (discussed below).
Where there is a pattern of absence due to illness and the employer suspects that a mental health issue may be the cause, an employer could ask the employee to provide proof of sickness or injury (a medical certificate) as allowed for by section 68 of the Holidays Act 2003. The problem with medical certificates is that the patient must consent to disclosure of diagnosis, and so a medical certificate may not provide sufficient detail to alert an employer to a mental health issue.
Where mental illness is suspected, it may be appropriate to request that the employee undergo a medical examination at the employer’s cost (subject to the employee’s consent) to determine fitness or capacity for work. Alternatively, there may be a provision in the employee’s employment agreement which requires the employee to undergo medical examination to determine fitness for work on reasonable grounds.
Addressing Mental Health Issues
Where an employee has raised a mental health issue, or where the employer suspects there may be a mental health illness contributing to work performance problems, in most cases the best approach will initially be to meet with the employee to discuss matters informally. Matters that the employer should consider prior to any meeting will include:
- Is the meeting venue private and neutral?
- How will the performance or other issue(s) be defined and outlined?
- How do you deal with denial or, conversely full disclosure?
- Is it appropriate to adjourn any meeting to allow a support person to attend?
- What potential solutions may assist the employee with any issue(s)?
- Does the business have any resources such as an employee assistance programme (e.g. counselling) that it can offer?
- How will the business deal with confidentiality and privacy issues?
- How and when will the business follow-up or monitor progress?
An employee may not know, or may refuse to acknowledge that he or she has a mental health problem. In that case, there may be little that an employer can do to help after discussing any issues with the employee, unless more general workplace factors are suspected e.g. stress, fatigue, bullying. But if there is a continued problem affecting performance after an informal meeting, it may be appropriate to consider formal disciplinary action at that time. This needs to be in good faith and justified under the Employment Relations Act 2000 and we recommend that you seek legal advice.
A formal disciplinary process should always be used if the situation is serious enough that termination of employment could be considered, for example misconduct which may have a mental health issue aspect, such as an unprovoked assault of a colleague, or substance abuse that affects work.
Managing the Illness of an Employee
Where an employee’s mental health illness is identified as a workplace problem, the employer should consider whether there are any functional limitations that could affect the employee’s ability to carry out the essential duties of his or her job. The following list provides a few practical steps that could be taken to alleviate or minimise the impact of mental illness:
- Seek consent to discuss functional limitations, stressors, prognosis, recovery timeframes, etc with the employer’s GP or medical specialist;
- Ensure that staff are aware of support that is available, e.g. employee assistance programmes (EAP), peer support, flexible working arrangements and so on;
- Offer management and/or staff training about mental illness, work-related stress, discrimination and bullying/harassment to improve understanding and management of mental health (and other) issues, and foster an open culture where mental wellness issues can be discussed;
- Monitor workload at regular intervals;
- Assess the physical work environment to address potential stressors;
- Allow flexible working arrangements where possible/appropriate, and/or consider introducing job-sharing policies.
It is important that the employer turns its mind at an early stage to any potential for gossip or other bullying. This can usually be addressed by setting or reinforcing workplace behaviour expectations or standards, but will need to carefully consider and address any issues of privacy and confidentiality.
Where there is knowledge of an employee’s mental health in the workplace, an employer should ensure it has a policy in place to prevent discrimination (e.g. an employee being overlooked for promotion on the basis of a past or ongoing mental illness) under the Human Rights Act 1993.
Any changes in the workplace to assist the affected employee may also impact on other staff, for example where there is an increased workload for other staff due to a reduction of hours for the ill employee. Subject to issues of confidentiality and privacy, other staff members can be consulted to identify working conditions that may negatively influence staff wellbeing. For example, if an employee with a mental health problem is offered flexible working hours, it may be appropriate to offer the same conditions to all staff.
The issues covered above are often complex (we have just touched on four statutes), necessitate sensitivity and may require consideration of other factors. If, having read this article, you have any thorny questions, please contact our employment team for advice.
By Jim Roberts, Partner, Hesketh Henry & Sam Houliston, Senior Associate, Hesketh Henry
heskethhenry.co.nz