So if mental health issues are a reality in the modern workplace, and the Act requires employers to account for mental health and people's behaviour when creating a safe workplace, what is likely to happen now that the new laws are in force?
The regulator, Worksafe New Zealand, has more resourcing, and more workplace investigators, than ever before. One of the very first "best practice guidelines" published by Worksafe was the 30-page Preventing and Responding to Workplace Bullying guide, which includes an extensive list of bullying behaviours, only one of which refers to physical actions.
I predict Worksafe will become more interested in non-physical harms, as the evidence mounts about the damage they cause for a growing portion of the workforce who are now sedentary. Employers who ignore the potential for non-physical harms will find themselves facing penalties for not providing a safe workplace, including imprisonment (of up to 5 years) and fines (of potentially up to $3 million).
In the past year alone, WorkSafe conducted over 780 investigations, 14,500 proactive assessments of workplaces, 106 prosecutions (91% of which were successful) and 3,300 serious harm notifications. Traditionally, Worksafe has focused on physical harms, but even last year under the old legislation, there were six prosecutions for "risk" of harm where no physical injury had occurred, and the largest fine was $60,000.
The Employment Relations Authority and the Employment Court have also accepted that an employee can suffer harm as a result of "stress", "fatigue", or "bullying" and that this can be a breach of contract by an employer who has a duty to provide a safe working environment.
So what mental health issues should employers be looking out for? And what should employers do to provide for good mental health in their workplace and minimise the risk of prosecution by Work Safe?
"Mental health" has been broadly interpreted by WorkSafe to cover both physical and non-physical harms - this is a challenge for employers as non-physical harms are hard to spot. Organisations are dependent on employees telling their managers that they are struggling. This is hard - making admissions is very difficult, especially when it might impact your job.
How do we identify mental health issues in the workplace from a safety perspective? Worksafe uses its own definitions of "stress", "bullying", and "fatigue".
"Stress" is defined as an awareness of not being able to cope with demands on you. "Fatigue" means a temporary inability, or decrease in ability to respond to a situation. And "bullying" means repeated and unreasonable behaviour directed towards an individual or a group.
Stress, bullying, and fatigue are interrelated and mutually reinforcing. Stress can contribute to bullying by creating a perception that an employee cannot cope with work demands. Bullying can lead to further stress. Fatigue is often a common outcome of stress. But to a certain degree, these are all invisible - there is no bandage, plaster, or broken bone showing.
Employers should do the following in terms of prevention:
• Culture and leadership from the top is key;
• Ask for confidential disclosure when new employees start of any mental health issues;
• Mental health information must be treated as confidential;
• Employee Assistance Programmes, staff surveys, and support groups can also show you trends and changes in your workplace without individual disclosure.;
• Explicitly recognising that factors such as stress, fatigue, and bullying and harassment can be hazards in your workplace is a good start. If your workplace does not acknowledge mental harms as being "real", this reduces the ability and willingness of employees to raise concerns early, and makes it more difficult to prevent issues or resolve problems while they are still manageable.
• Having procedures in place so that employees have a path to raise concerns is vital, and everyone should know what will happen once a concern is raised, that is, they will be taken seriously and not suffer punishment. Make sure staff knows who to contact, and have an alternative point of contact - what will happen if the person they need to talk about is their manager? Can they go elsewhere? Insufficient policies and lack of risk management are the most comment causes of prosecution under the Act.
In responding to mental health risks and hazards, employers should:
• Take mental health risks seriously and action promptly;
• Formal complaints are not required - do not ignore what you can plainly see or even informally expressed concerns;
• Investigate and do that fairly and transparently;
• Get medical advice and follow it.
Recent court cases
Two decisions of the Employment Relations Authority illustrate the approaches an employer should and should not adopt, when addressing mental health concerns in the workplace.
The Authority's decision of Beckingsale v Canterbury District Health Board illustrates the dangers of not taking mental health issues in the workplace seriously. Ms Beckingsale, a social worker, raised repeated concerns that she was subject to bullying by a supervisor and later resigned from her position. The Authority found that Ms Beckingsale had been constructively dismissed, as the Board should have shown leadership and fully investigated the concerns she had raised. Ms Beckingsale was awarded $3,991 in lost wages, and $10,000 compensation for hurt and humiliation.
On the flipside, proactive consideration and treatment of an employee's mental health issues will insulate an employer from any legal action. In the Authority's determination of Ahmed v Connect Supporting Recovery Inc, Mr Ahmed claimed to have been bullied and harassed after he had been dismissed. He had not raised these concerns before his dismissal, although Connect was aware Mr Ahmed was unwell. He was given time off work and encouraged to see his psychiatrist. Connect also asked for reports from Mr Ahmed's psychiatrist and an independent psychiatrist at its cost. When Mr Ahmed was not able to return to work after a substantial length of time, he was dismissed. Mr Ahmed's dismissal was upheld as justified, and Connect's treatment of his mental health concerns was described as "patient" and "measured".
These cases show that the Courts will consider whether concerns were raised with employer; whether the employer looked into these concerns; and what active steps the employer took to manage the situation. Any medical advice available will also be relevant, and employers who seek out and comply with medical advice will find this is viewed favourably.
Mental wellbeing and greater productivity
Ultimately, a mentally healthy workplace should experience greater productivity, less staff absenteeism and greater staff retention. Thus, societal perceptions of mental health and the need to protect it have to change.
Whether mental health policies/procedures in the workplace succeed will depend on;
a) Employers buying into the idea that this is a health issue, these are hazards and harms, and they do need to address it and,
b) Employees feeling comfortable raising mental health concerns with employers (which is in turn contingent on employer buy-in.
Organisations that ignore mental health issues will now face real risk of prosecution under the new Act as well as worse performance and productivity.
Mai Chen is managing partner of Chen Palmer who specialise in employment law and health and safety compliance.
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