11 July 2019

Rethinking mental health in the workplace and the role of the employer

The Government recently announced its Wellbeing Budget for 2019 and confirmed the growing mental health crisis in New Zealand.  The importance of this issue and how we can support those affected is an ongoing conversation that has become very relevant in the workplace, and was recently considered in the Employment Court.

An employer has to take all steps reasonably practicable to provide a safe workplace, and a hazard is defined under the Health and Safety at Work Act 2015 as including a person’s behaviour.  Employers can no longer ignore the crisis or say it is none of their business – in fact, it is quite the opposite.  The Court has confirmed that an employer has to take active steps to investigate, identify, and clarify mental health issues and risks in the workplace, and look to provide ways to reduce those issues and risks, in order to satisfy its duty of providing a safe workplace.

The case of FGH v RST

Ms F began working for RST in 2012 and over the years there were some performance concerns with her.  However, in May 2015 she told RST that she was suffering from anxiety, and in July 2015 told them she had been diagnosed with attention deficit disorder.

In October 2015 RST started a performance management plan with Ms F following various issues.  By December, her behaviour had started to drastically change, including having outbursts and behaving aggressively toward RST.  In February 2016 after Ms F had another outburst at work, RST decided to commence a disciplinary process.

Ms F raised a personal grievance against RST, claiming she had been unjustifiably disadvantaged by RST’s failure to provide a safe work environment.

What did the Employment Court say?

RST argued it had accommodated Ms F’s mental health conditions to quite a degree through the performance and disciplinary processes, including:

• Giving her additional time to respond to its concerns.
• Providing her with discussion points for meetings.
• Rescheduling meetings to suit her.
• Offering her support through EAP Services Limited (the employee assistance counselling programme provider), coaching support, flexibility to where she worked (change of desk).

The Court agreed that the steps taken were a genuine and reasonable attempt by RST to reduce stress, however, they were not enough to discharge its obligations to provide safe and healthy workplace.

The Court said Ms F’s anxiety had worsened as a result of the performance processes.  RST felt her behaviour was because she did not want to be performance managed, but the Court said it was actually a symptom of her known mental health conditions.

The Court suggested RST should have focused on managing Ms F’s conditions, rather than the performance processes it was running and that if it had it done this, the misconduct may never have arisen.  The Court said:

• It was foreseeable that continuing with formal performance and disciplinary processes following Ms F’s outbursts would result in negative reactions because of her known mental health conditions.  These processes should not have continued until after a mental health assessment was done; and
• A fair and reasonable employer should have requested further medical information and assisted the employee in obtaining the requested information.  RST did not take proper steps to try and obtain its own medical evidence to assess and manage the situation or carry out sufficient investigation.

The Court concluded Ms F had been unjustifiably disadvantaged in her employment.

What does this mean for employers?

Where an issue of mental health arises in the workplace, an employer is obliged to investigate, identify and clarify the issues and risks, and look to reduce those in order for an employee to remain safe in the workplace.

The employer in FGH v RST followed a tight process from an employment law perspective, however, the Court was clear that obligations increase where an employer is aware of an employee’s mental health condition, and that was where the focus should have been first.

The findings in FGH v RST set a clear precedent that employers must:

• Take preventative measures in the workplace to address mental health conditions; and
• Respond appropriately where employees may be suffering from mental health conditions.

There is no set formula for employers to follow when dealing with mental health in the workplace.  Employers need to be adaptive, open-minded and prepared to spend the time ensuring its workplace is taking a proactive approach to dealing with mental health in the workplace.

Simple first steps could include assessing and adapting current leadership structures and styles, promotion of exercise through work sports teams, introduction of a mental health policy and training in order to start the open kōrero within your business, and continual building of trust and confidence with your employees.  Remember, trust and confidence can rarely be built over emails and phone calls – communicate kanohi ki te kanohi (face to face) wherever possible to ensure you remain in touch and aware of what is going on in your workplace.

Most employers genuinely want to help their employees and do the right thing in these situations, but sometimes just do not know what to do.  A holistic approach underpinned by manaakitanga (caring for others) that focuses on proactive prevention and fair responses will go a long way to improve workplace wellness.

If you would like further information please contact Renika Siciliano on 07 958 7429.