27 September, 2018
The challenges associated with the management of mental health issues at work are many and varied. What happens in the case of a "presumed disability"?
In a society with a significantly increased awareness of mental health issues and a much greater willingness to discuss these issues in an attempt to address them, employers are increasingly being encouraged to identify the signs of mental health issues at work and to foster a culture of open communication about mental health.
In that environment, how do you think you would react if one of your employees was:
- experiencing difficulties with their thinking processes or memory?;
- avoiding social interactions?;
- experiencing problems with physical symptoms and functioning, such as blurred vision, being sleepy and fatigued or turning up late for work?;
- experiencing problems with their emotions, including feeling and expressing feeling of frustration, anxiety, sensitivity to feedback or having a low mood?;
- acting out of character or behaving inappropriately?
Of course, none of the above are definitive signs that a person is suffering from a mental health issue. It is also important to remember that workplaces are naturally made up of a group of diverse people. So, how do employers draw distinctions between behaviour and conduct that is concerning because it is a new behaviour from an employee or conduct that is simply "different" to that which you are accustomed to seeing amongst your workforce?
What responsibilities do employers have?
Employers have a primary duty of care to ensure the health and safety of employees and other workers while they are at work.
An employer's responsibility for managing mental health is inherently complicated; however this should broadly be managed in the same manner as the management of a physical illness or injury.
How to manage mental health issues in the workplace
A recent decision of the NSW Civil and Administrative Tribunal, Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106 demonstrates the risks associated with an employer forming a view about and managing an employee on the basis of a presumed mental health issue. The case also demonstrates the apparent drafting deficiencies in the Anti-Discrimination Act 1977 (NSW) (ADA), where an employee is discriminated against on the basis of a presumed disability.
The facts of the case involve a child protection case worker who discussed various conspiracy theories and government cover ups with her colleagues. The employee received an email from her manager stating, "Based on these conversations, I have concerns about your wellbeing". The employee was directed to go on sick leave until the issues were addressed, with an HR manager appointed to liaise with the employee's treating practitioner.
What does the ADA say about disability?
Disability (relevantly) is defined in the ADA to include "total or partial loss of a person's mental functions; a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour".
Section 49A of the ADA provides that a disability includes past, future and presumed disability, that is, a disability "that a person is thought to have (whether or not the person in fact has the disability)".
So assume then that an employer thought an employee had partial loss of his/her mental functions – this would mean the employee had a 'presumed disability' for the purposes of the ADA and it would be unlawful for the employer to treat the employee less favourably than it treated an employee who did not have the presumed disability.
But who is the comparator?
The difficulty lies in determining who the comparator should be in circumstances of a presumed disability. A comparator is essentially another person, whether actual or hypothetical, who is used as the comparison to determine whether or not there has been discrimination. Ordinarily, in disability discrimination cases, a comparison is made between the way in which a person with a disability is treated (or proposed to be treated) and the way in which a person without the disability is treated or would be treated in circumstances that are the same or not materially different.
The ADA provides the comparator should be "a person who does not have that disability". Therefore, in the case mentioned above, the comparator would be another employee who also talked about conspiracy theories, cried all day or was sleepy all the time, but who didn't have the presumed disability. But in that case, the employer would inevitably think the comparator employee too had a mental health disability, based on the same assumptions. Therefore, it is near impossible to determine the test of whether or not an employee has been treated less favourably or subjected to a detriment, in the case of presumed disability.
In the Stefanac case, this difficulty meant the Court simply applied the reasonable person test – would a reasonable person consider that directing a person to take sick leave and not return to work until a medical clearance was given, constitute a disadvantage? The Court determined that it was a disadvantage and it awarded the case worker $20,000 in damages, based on evidence that the discrimination adversely affected the employee and materially contributed to her anxiety/depressive disorder.
So how should an employer manage these issues?
Given employees do not always disclose mental health issues in the same way they disclose a physical illness or injury, employers should take further positive steps to engage with employees about their health and well-being. Employers in industries or professions that have a higher incidence of mental health issues may have an increased responsibility to take steps to manage such issues.
Educational and informative sessions about mental health and well-being are examples of low intervention approaches that demonstrate that employers are aware of and concerned about the mental health of their employees. Higher intervention approaches such as requiring employees to demonstrate their fitness for work, should be implemented with caution, in the same way as physical illness or injury is managed.
For further information, please contact:
Kristy Peacock-Smith, Partner, Bird & Bird
kristy.peacock-smith@twobirds.com
