Mental Health Awareness at Work

He aha te mea nui o te ao. He tāngata, he tāngata, he tāngata.

This whakatauki reflects the importance of our people, and with 23 – 29 September being Mental Health Awareness Week, the Employment Team at DTI Lawyers thought it timely to reflect and share our tips for a Mental Health and Wellbeing Policy in your workplace.

It is encouraging to see a number of employers responding to the needs of employees who may require additional support and/or flexibility in their work for mental health and wellbeing, both short-term and long-term. An employer’s support of employees’ mental health and wellbeing can assist in managing employees, preventing absenteeism, performance/disciplinary issues arising, and issues escalating. In addition to that, it’s vital for employers to manage risks to maintain a safe and healthy working environment for all its employees.

The Mental Health Commissioner reports that New Zealand’s rates of mental health issues is one-in-two of us will have a mental health or addiction issue at some stage in our lives and one-in-five of us at any one time will have a mental health or addiction issue where we may need support.

With those stats in mind, every employer ought to have a Mental Health and Wellbeing Policy in place. The foundation for that policy will be the mutual obligations of good faith in the employment relationship, including the requirement to be active and constructive in maintaining that relationship, and not to do anything to mislead or deceive, or is likely to have that effect.

With that foundation, an employer and employee will be able to have conversations about an employee’s wellbeing in a structured way in a supported and safe environment, without fear of discrimination and/or disparate treatment when an employee discloses a mental health issue to their employer, or the employer becomes aware of an issue. Any such treatment is unlawful. It is imperative that an employee who discloses mental health issues or has any underlying medical condition is treated fairly.

Both the Human Rights Act 1993 (“HR Act”) and the Employment Relations Act 2000 prohibit workplace discrimination against people on the grounds of disability, which includes:

• Psychological impairment or disability
• Psychiatric illness
• Any loss or abnormality of psychological, physiological function.

The HR Act also provides that it is unlawful to ask questions of, or about, a job applicant which indicate an intention to discriminate on one of the prohibited grounds of discrimination under the Act.

The Health and Safety at Work Act 2015 (“HSWA”) requires employers, as a “person conducting a business or undertaking” (“PCBU”) to ensure, so far as reasonably practicable, the health and safety of their employees and other workers (including contractors). Where a mental health issue is disclosed or becomes apparent, the standard imposed on employers by the HSWA is onerous.

The Court has provided guidance on this in the case FGH v RST [2018] NZEmpC 60. We’ve previously provided commentary on the effect of the Court’s judgment in that case ( www.dtilawyers.co.nz/news-item/managing-mental-health-and-fair-employment-process ), but reiterate the key messages are:

• the first focus should be on understanding the mental health issue before commencing a performance or disciplinary process and managing the inherent stress associated with those processes.
• where mental health issues are disclosed, known (or suspected), the employer needs to seek to understand that issue, including requesting a medical examination (at the employer’s expense), then determining the employee’s fitness or capacity to perform work duties, prior to continuing with a process.

It is clear that an employer should take proactive steps in the circumstances where mental health issues are a factor in an employee’s employment.

Mental Health and Wellbeing Policies

There are excellent resources available at the Mental Health Foundation website, including the Five Ways to Wellbeing Toolkit. We recommend the Five Ways to Wellbeing toolkit, which focuses on: Connect, Be Active, Take Notice, Keep Learning and Give.

A Mental Health and Wellbeing Policy (“the Policy”) should incorporate your organisations commitment to the promotion and support of employee’s mental health and wellbeing at work. The Policy should set out the key principles of support, partnership and self-responsibility in raising concerns and managing wellbeing in the workplace and a commitment to creating and maintaining a workplace where that is encouraged. The Policy should also provide a commitment to open communication, conflict management and a workplace free from discrimination, bullying and harassment (and associated policies). Confidentiality is also key.

The Policy should set out how it will be administered, and who the key people are within the organisation that an employee can go to when they have concerns, and how to contact those key people (e.g. line managers, Team Leaders and HR). Those key people should be trained in receiving that information, and how to support the employee both initially and on an ongoing basis. The Policy should provide details on what opportunities are available to support employees in looking after their mental health. For example – does the organisation provide external, confidential counselling support? Practically, the Policy can refer to working conditions, both physical (such as lighting, heating, ergonomics) and setting realistic targets, hours worked, training and support.

The Policy should also set out what it looks like for the organisation to support an employee through a period of unwellness – flexible working, including hours, tasks, location if practicable? Return to work plans? What/who/how communication will work through that period? Counselling?

We recommend that the Policy provides for exceptional circumstances/trauma support – who, what, how?

Finally, we recommend provision for help finding support/where to find support, such as:

• Free call or text 1737 any time, 24 hours a day to speak with a trained counsellor

• Lifeline 0800 543 354

• Mental Health Foundation www.mentalhealth.org.nz

• Depression helpline 0800 111 757 or www.depression.org.nz

• Support for young people www.thelowdown.co.nz

• Youthline 0800 376 633 or www.youthline.co.nz

If you’d like to discuss a Mental Health and Wellbeing Policy for your organisation, the Employment Team at DTI Lawyers would be happy to assist. We are also happy to review your policies, or work with you to draft an appropriate policy for your workplace.