Mental Health and Hauora/Wellbeing in the Workplace

Employers and employees alike may experience mental illness at any stage in their lives.  Given the length of our working lives – the likelihood of it happening during our working life is high.  With that in mind, it is important to foster workplaces where talking about mental health is a safe and natural thing to do. 

In this article, Tazmyn offers tips to equip employers to support their employees in the workplace and understand their obligations if an employee is experiencing mental health challenges. 

What does the law say?

Firstly, an employer has an obligation to take all reasonably practicable steps to prevent harm in the workplace.  If all reasonably practicable steps are not taken, and an employee suffers harm, they may have grounds to bring a personal grievance under the Employment Relations Act 2000 (the ERA). 

Under the Health and Safety at Work Act 2015 (the Act), employers are referred to as a PCBU (“person conducting a business or undertaking”).  A PCBU has a paramount obligation to ensure the health and safety of their employees.  The “health” in health and safety includes mental health. 

Looking at case law, FGH v RST [2018] NZEmpC 60 provides some key points around an employer’s obligations regarding an employee with mental illness, specifically in cases where performance is in question.  Where an employee discloses a mental health matter, an employer should first understand the matter prior to entering any form of disciplinary process.  In that case, it was not enough that the employer had offered extra support to the employee - the employer had a positive obligation to seek further information.  The employee stayed employed, and in 2021 raised further personal grievances after a disciplinary process.  The Employment Court ruled in favour of the employer this time as they had engaged a psychiatrist to assess whether the employee was fit to work and able to participate in a disciplinary process.  The learning from the second proceeding is that if independent advice declares an employee fit and able to participate in a formal disciplinary process, and there are no other perceived risks to be addressed, an employer can proceed with caution.

What can employers do?

A mental health/wellbeing/Hauora policy is an essential part of ensuring that employers are upholding their obligations and most importantly, looking after the people of their business.  Policies should set out what type of support is available, including guidance for employees around how to navigate or approach things or who to go to for a confidential kōrero.  

When it comes to mental health, Hauora, and wellbeing, unfortunately no one (including employers) have all the answers – as much as we might wish we did.  What we do know is that creating a healthy, safe, and supportive environment is fundamental.  He aha te mea nui o te ao?  He tāngata, he tāngata, he tāngata.  What is the most important thing in the world?  It is people, it is people, it is people.  A Māori proverb and reminder that it is people who are at the centre of what we do - let your workplace be one that is equipped to support its people when times get tough.

Our workplace team at McCaw Lewis are available to discuss and assist with reviewing/drafting mental health and Hauora policies for your workplace.  The team are also available to assist you in any employment process where an employee is affected by mental health where support and a cautious approach is required.

Tazmyn is a Solicitor in our Workplace Team and can be contacted on 07 958 7467.