Providing equal employment opportunities  Under the Disability Discrimination Act 1992 (Cth), it is illegal for an employer to discriminate against someone on the grounds of disability – including a mental health condition.

As an employer, you must offer equal employment opportunities to someone with a mental health condition. If a person can fulfil the ‘inherent requirements’ of the job, he or she should have just as much chance to do that job as anyone else. These inherent requirements will be different for each role and include the ability to perform core tasks, work effectively with the team and work safely.

These laws against discrimination apply:

• during the recruitment process, including advertising, interviewing and other selection procedures
• in deciding who will get the job
• when negotiating terms and conditions of employment, such as pay rates, work hours and leave
• in determining promotion, transfer, training and other benefits associated with employment
• in the dismissal, demotion or retrenchment process.

Making reasonable adjustments

For many people experiencing a mental health condition, small changes to the working environment will be enough to ensure they have an equal opportunity to perform the requirements of the job.

If you’re an employer, you’re required by the Disability Discrimination Act 1992 (Cth) to make reasonable adjustments so that a person with a mental health condition can productively perform the functions of a job.

This might include:

• adjustments to work methods or arrangements, including hours of work and use of leave entitlements
• adjustments to the workplace or work-related premises, equipment or facilities
• adjustments to work-related rules or modifications to enable a person to comply with rules as they exist.

The individual situation will dictate what kinds of adjustments are reasonable in the circumstances. In most cases, the employee involved will be able to identify what changes are required. If the requested adjustments would impose unjustifiable hardship on your organisation or change the role’s inherent requirements, there is no obligation to implement them.

The Australian Human Rights Commission has developed a brief guide to the Disability Discrimination Act 1992 (Cth).

Safe work Australia has produced a fact sheet on making reasonable adjustments. It can be dowloaded by clicking here.

Providing a safe and healthy workplace

Under each state and territory’s work health and safety legislation, there are obligations to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace, such as visitors and customers. ‘Health’ is defined in the Work Health and Safety Act 2011 as both physical and psychological health.

The employer, or person in control of the business, should ensure health and safety so far as is reasonably practicable by:

• providing and maintaining a work environment without risk to health and safety
• providing and maintaining safe systems of work
• monitoring the health of workers and the conditions at the workplace
• consulting with workers and their representatives on work health and safety matters
• providing information, training, instruction and supervision so workers can safely perform their work activities.

At the same time, there are obligations under work health and safety legislation for workers and all other people within a workplace. Under the Disability Discrimination Act 1992 (Cth), an employee’s ability to work safely is an ‘inherent’ or essential requirement of any job. If an employee’s mental health condition could reasonably be seen to cause a health and safety risk for other people at work, then failing to disclose that risk could be a breach of their obligations under work health and safety legislation.

What are my rights? 

While employers have a number of legal obligations, they do have the right to ask certain questions about an employee or potential employee’s mental health condition.

Where more information about a condition is legitimate, necessary and desirable, an employer is permitted to ask an employee or potential employee for details. This may be:

• to determine whether the person can perform the inherent requirements of the job
• to identify if any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment and role
• to establish facts for entitlements such as sick leave, superannuation, workers’ compensation and other insurance.

If you’re an employer in this position, the overall test is whether your enquiries are for a ‘legitimate’ purpose. For example, it might be legitimate to ask an employee questions about their medication if the job involves operating machinery.

If you do ask your employee for information, you must maintain confidentiality and protect his or her right to privacy. This means protecting the information against improper access and disclosure.

Contact us

For more information about Mental Health in the Workplace programs, please call 1300 528 736 or make an online enquiry.