Appendix A: Knowing the law

2010 Workers with Mental Illness: a Practical Guide for Managers

Appendix A: Knowing the law

Disability discrimination legislation and employment

The Commonwealth Disability Discrimination Act 1992 (Cth) (DDA) and equivalent state and territory laws make it unlawful to discriminate against, harass or victimise people with disabilities or their associates – including in employment.

The term ‘disability’ is broadly defined. It covers mental illness:

whether temporary or permanent
past, present or future
actual or imputed.

The law defines discrimination to include both direct and indirect discrimination. It is important to note that a failure to make reasonable adjustments for a worker with disability, including a worker with mental illness, may constitute direct or indirect discrimination.

The precise definitions are set out in the DDA. However, for practical purposes, you can use the following definitions.

Direct discrimination^[19] occurs in employment where:

a worker is treated less favourably by an employer than someone without disability because of his or her disability.

For example, refusing to employ or sacking someone because s/he has a mental illness.

an employer refuses to make reasonable adjustments for a worker with disability and this has the effect that the person is treated less favourably than someone without disability.

For example, not allowing someone with depression to work part-time where this arrangement has been sought as an adjustment for the worker’s mental illness may be direct discrimination.

Indirect discrimination^[20] occurs in employment where:

an employer imposes a requirement or condition that applies generally, but

an employee cannot comply with it because of their disability
the requirement or condition has the effect of disadvantaging people with the disability and
it is unreasonable in all of the circumstances.

For example, it may be indirect discrimination to require a worker with mental illness to meet a general policy to start work at 7am, when the effect of their medication means they are not alert in the early morning.

an employer imposes a requirement or condition which is unreasonable and

a worker with a disability can comply with the requirement or condition only if reasonable adjustments are made, but
the employer does not make reasonable adjustments, and
this failure or refusal to make adjustments disadvantages people with the disability.

For example, it may be indirect discrimination to impose a requirement that employees must work an 8 hour shift but not allow a worker with mental illness to take additional breaks where required to be able to complete their shift.

Indirect discrimination may not be deliberate but may occur due to a lack of awareness about the negative impact a particular policy can have on a worker with mental illness.

What are reasonable adjustments?

In the vast majority of cases, small changes in the workplace will enable a worker with mental illness to do their job.

An adjustment will be a ‘reasonable adjustment’ unless it would cause an employer an ‘unjustifiable hardship’ to make the adjustment. In considering what an unjustifiable hardship is, it is necessary to take into account:

the benefit or detriment to the employee
any benefit or detriment to others affected by the adjustment
the effect of the mental illness
the cost of the adjustment and the employer’s financial position, and
the availability of financial or other assistance to the employer in making the adjustment.

Further information: Chapter 3 – Managing Mental Illness in the Workplace for examples of the common adjustments you can consider for workers with mental illness.

Harassment in relation to a worker’s mental illness is also unlawful. ‘Harassment’ is defined as an action taken in relation to a person’s disability that is reasonably likely to humiliate, offend, intimidate or distress the person.^[21] Harassment may include physical or verbal threats, demeaning comments and actions aimed at humiliating someone. The behaviour does not have to be repeated or ongoing to be harassment.

Victimisation occurs where a person subjects or threatens to subject someone to unfavourable treatment for asserting any rights, either for themselves or someone else, under the DDA.^[22]

Inherent requirements of a job

‘Inherent requirements’ of a job are those requirements, tasks or skills that are essential to the position.

You are required to assess the inherent requirements of the job to determine whether the worker with mental illness can meet these requirements of the job with the assistance of some reasonable adjustments.

Where a worker is unable to perform the inherent requirements of the job and no adjustment can reasonably be made to allow them to perform the core work requirements then you may choose to explore alternative work options.

It is not unlawful discrimination to terminate a worker’s employment where they cannot perform the inherent requirements of the job after reasonable adjustments have been made. You should note, however, that you may still have legal obligations under the contract of employment, award or agreement or other laws.

Commonwealth industrial law

Commonwealth industrial law, Fair Work Act 2009 (Cth), also provides protection for employees with mental illness from adverse actions taken by an employer.^[23] Employers who are covered by the Commonwealth legislation must not take adverse action against an employee or prospective employee because of mental illness. An adverse action can include dismissal, injuring the employee, altering the position of the employee to the employees prejudice, refusing to employ a prospective employee or discriminating against an employee. In some circumstances, similar to those in Commonwealth and State anti-discrimination laws, an adverse action may not be unlawful under the Fair Work legislation, but employers should be aware of their obligations under these laws.

Privacy and disclosure

You may be bound by the Commonwealth Privacy Act 1988 (Cth) and similar legislation in some States and Territories. Even if you are not bound by such privacy legislation, you will be bound by implied contractual and equitable principles for maintaining confidentiality in an employment relationship.

As a result, when a worker discloses that they have a mental illness, this information should generally not be disclosed without their consent. You can usually only use this information for the purpose they disclosed it to you (e.g. to seek some adjustments to their work to deal with their mental illness).

There may be exceptions depending on the particular legislation to which you are subject including, for example, where:

use of the information is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person, or
use of the information is required or authorised by law.

As with any other potential health and safety risk, whether it is a back injury or mental illness, you are obliged to eliminate, isolate or lessen health and safety risks while taking care to ensure the privacy of workers is upheld.

Occupational health and safety (OHS)

You have an obligation under legislation and at common law to provide a safe and healthy workplace and to take action to prevent or lessen potential risks to the health and safety of all workers and visitors.

Research by the Australian Safety and Compensation Council (now Safe Work Australia) found that people with disability, including those with mental illness, do not have a higher risk of occupational injury. In fact, the incidence of occupational injury is lower for people with disability.^[24]

Employers, managers and workers have a responsibility to:

ensure safety, whether a worker has a mental illness or not
consider reasonable adjustments that can be made for workers with mental illness. It may be possible to fulfil the safety criteria by implementing minor reasonable adjustments in the workplace
consider individual circumstances. Do not rely on assumptions or stereotypes about a particular mental illness – the abilities of each individual person must be considered against the inherent requirements of the job
assess actual risk – it is important to objectively assess the actual OHS risk of a worker with mental illness to ensure that the assessment is based on ‘real’ risk rather than ‘perceived’ risk
determine the degree of risk and take proportionate steps to minimise or prevent it – the more serious the risk and the greater the likelihood of it happening, the more important it is to take preventative steps
take action to eliminate or manage the risk as appropriate.

A lady in a wheel chair smiling working in the library As a manager, you are responsible for ensuring a safe working environment for all workers and the general public.

As outlined in Chapter 4 – Creating a Positive Workplace for All, some factors in the workplace which may contribute to mental illness among workers include:

stress
bullying and harassment
workplace trauma.

You also have an obligation to identify whether these risks of harm to mental health (or any others) exist and to take action to eliminate or manage that risk.

Safety related to alcohol and drugs

The use of alcohol or drugs is a general health and safety risk factor which affects a person’s ability to perform their work safely.

Where a worker’s behaviour suggests that the use of alcohol or drugs may be affecting their capacity to work safely, such as driving or operating machinery, you should:

identify whether the worker’s capacity to do the job safely is impaired
assess the risks associated with any impairment
take appropriate measures to eliminate or control those risks, which will usually involve preventing the affected worker from continuing with work that could cause harm. Where alcohol or non prescription drugs are involved, this will also usually involve disciplinary action being taken.

You should check whether there are specific requirements in state or territory legislation related to alcohol or drugs in the workplace. Refer to the research paper Work-Related Alcohol and Drug Use – A Fit for Work Issue, which lists the relevant legislation, and provides a breakdown according to drug type and use by gender, age and industry.^[25]

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^[19] Section 5 DDA
^[20] Section 6 DDA
^[21] Disability Standards for Education 2005
^[22] Section 42 DDA
^[23] Section 351 Fair Work Act
^[24] Australian Safety and Compensation Council (2007) Are People with Disability at Risk at Work? A Review of the Evidence, Australia
^[25] Work-Related Alcohol and Drug Use – A Fit for Work Issue: http://www.safeworkaustralia.gov.au/NR/rdonlyres/F3CBE578-8258-47E3-A280-A26BAAEFFA95/0/alchol_drugs_researchReport_07_p9.pdf