If an employee makes the decision to disclose their mental health issue and faces discrimination there are a number of laws that protect them. Photo / iStock
If an employee makes the decision to disclose their mental health issue and faces discrimination there are a number of laws that protect them. Photo / iStock
Disclosing a mental health issue in a workplace is still a risky call for most workers, research indicates. Even though there is generally no legal duty in Australia to disclose to an employer and legal recourse if employees are discriminated against, disclosure can have its costs.
It is disheartening that there still needs to be a discussion about this topic because mental illness is so common. The National Health Survey estimates that the employment rate for Australians aged 16-64 years with a self-reported mental illness is just over 60% in comparison to the rate of 80% for people who have not reported a mental illness.
Of course it is difficult to find precise data on employment rates for those with mental health issues because some may choose not to disclose such issues.
The decision as to whether or not to disclose mental health issues is "far from trivial" UK Professor Graham Thornicroft has pointed out. He suggests employees who are considering disclosing make "a balance sheet of the advantages and disadvantages" (p. 54).
In 2012, a team of researchers in England systematically reviewed studies on the reasons why individuals decided to disclose in the workplace, setting out a series of pros and cons.
If an employee makes the decision to disclose their mental health issue and faces discrimination there are a number of laws that protect them. For example, section 351(1) of the Fair Work Act 2009 states:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's... mental disability.
There are similar provisions in the Disability Discrimination Act 1992 and Australian Human Rights Commission Act 1986.
These laws against discrimination means an employer failing to make some sort of adjustment to work arrangements or forcing an employee to comply with a difficult requirement may be liable. For example, in one case the Fair Work Commission ordered that an employee, described as being in "a poor mental state", should be reinstated as adjustments could be made to enable her to return to work.
However this applies only when the employer doesn't have a lawful defence. One such defence is that the employee is unable to carry out the "inherent requirements" of the job. Inherent requirements may include being able to perform the tasks required or being appropriately productive.
An employer can also raise a defence that it would cause the employer unjustifiable hardship to supply the services or facilities to enable the employee to work. It is difficult to discover how often these defences are used in claims for unfair dismissal on the basis of mental health issues because such cases may be settled out of court or not reported.
While the laws around discrimination offer some protection, taking legal action can be stressful and costly. In addition to this, some people with mental illness may not identify as having a "disability" which is the term used in most of these laws to encompass mental health issues. Recent research by Ben Cappell and colleagues suggests that trust in supervisors and the organisation is an important factor in influencing employees' willingness to disclose sensitive information.
Two to three per cent of Australians (about 600,000 people) are estimated to have a severe mental disorder which is defined as including severe depression, anxiety or psychosis. For those living with a psychotic illness, one study estimates the unemployment rate to be at 27.4%, five times that of the general population.
It may be more difficult for those with severe mental health issues to disclose such information than for those with less severe ones. There may be a number of reasons for this. One recent systematic review indicates there may be limited employment opportunities for those diagnosed with schizophrenia depending on the date of onset, duration and severity of the illness.
This study also points to factors such as the availability of welfare benefits and vocational services as relevant to employment rates. There is also what Michael Perlin refers to as "sanism" - the unwarranted negative attitudes people hold towards those diagnosed with mental illness.
In this regard, the National Mental Health Report 2013 found that while on average, Australians rated themselves as relatively more "willing" than "unwilling" to socially interact with people diagnosed with a mental illness, the average desire for social distance was highest for chronic schizophrenia.
