Mental Health And Workplace Law
It’s against workplace laws to discriminate against people with a mental illness, but a survey by the Australian College of Psychiatrists has found more than half those with a mental illness looking for work believe they were rejected because of their mental health problem.
One person told researchers he would have been better off telling job interviewers he’d just been released from prison.
“Sometimes I think it’s worse than telling them you have been in jail. Once you mention it their face changes and their body language changes and you know you won’t get the job”.
Around three per cent of Australians – 600,000 people – are diagnosed with a severe mental disorder. More than 3 million Australians have had a mild to moderate condition. It is far more common than most believe.
Workplace law expert at Stacks Law Firm, Nathan Luke, said it would be difficult to apply laws that protect against workplace discrimination to people rejected from job applications unless it could be established they were discriminated against.
“Mostly they just don’t get the job and aren’t given a reason,” Mr Luke said.
“The company will say somebody else had better qualifications or you didn’t quite fit the requirements. But if they say something like ‘We don’t want you because you have a mental illness’, then you could have a case and should seek expert legal advice.”
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.
Mr Luke said employers would be wise to get legal advice to be sure they are complying with the law as penalties can be severe. Employers have legal obligations to avoid discrimination, ensure privacy, avoid adverse actions and make sure the workplace fulfils health and safety regulations.
“There may be safety reasons a person with a mental illness can’t do certain work, but the employer needs to establish alternatives were offered. Unfair dismissal claims can be costly to employers.”
On a positive note, the survey did find 24 per cent of employees with a mental illness reported positive treatment at work. However 11 per cent said they were avoided by colleagues, and 14 per cent felt they were discriminated against.
While there is still stigma and ignorance surrounding mental health, employers are becoming aware that mental illness is fairly common. Two thirds of people with a reported mental illness are employed.