The prevalence of those suffering from mental health issues in New Zealand has been a huge focus in the media this year. This has been further highlighted by the current governments review and subsequent promise to do more in this area with subsequent policy changes imminent. Naturally this issue flows into the workplace (given people spend over 60% of their time at work). Employers need to take mental health issues of employees very seriously. Further in order to discharge their health and safety duties under the Health and Safety at Work Act 2015 (HSAW) employers are now having to ensure the psychosocial safety (not just physical safety) for those in the workplace.
A recent Employment Court decision provided further guidance on how employers should manage difficult situations such as the performance management of employees who have mental health conditions whilst also ensuring they are discharging their health and safety obligations.
In FGH v RST Ms H was a public servant who worked for RST an government organisation. Over time performance concerns started to arise hence the employer commenced a Performance Improvement Plan (PIP).
Early in the process Ms H advised her employer she had attention deficient disorder (ADD) and an anxiety disorder which affected her during this process where she became so ill she was unable to attend work for weeks.
In response her employer implemented additional support including EAP assistance, time off work to attend the gym, a desk move and support from business coaches as a genuine attempt to providing a safe workplace and counterbalance stress caused by the PIP.
During the process Mrs H made allegations of workplace bullying and a failure by RST to provide a safe and healthy working environment namely she was confused as to:
- what was expected of her,
- the steps in the process;
- her time for achieving them; and
- she felt micromanaged and unsupported by her manager.
The core of Ms H’s allegations was that she was disadvantaged by the way RST conducted the performance management process because it exacerbated her health problems.
RST argued that it took all reasonable and practicable steps in relation to Ms H’s anxiety around the performance management process itself and the impact of her ADD on her work performance.
The Court agreed that these responses (above) were genuine and reasonable steps to reduce Ms H’s work related stress BUT that they were not sufficient to discharge RST’s statutory and contractual obligations.
Ultimately the court found in Ms H’s favour. They also provided useful commentary as to how stress, anxiety and bullying are assessed from a health and safety perspective, specifically by a person conducting a business or undertaking (PCBU) under HSAW.
Key Advice
- An employer has a legal responsibility to take all reasonably practicable steps to prevent harm to their employees. This includes psychological harm.
- An employer’s failure to address concerns or instances of undue stress or bullying can give rise to a personal grievance under the Employment Relations Act 2000 on the basis that the employee was disadvantaged because of the employer’s failure to provide a safe workplace. An employee can also make a complaint to WorkSafe New Zealand under the Health and Safety at Work Act 2015.
- Policy must match practice when dealing with complaints
- Employers need to be aware that stress or anxiety associated with performance improvement processes is not necessarily counteracted by additional support measures.
- Employers need to consider whether the process itself causes harm, or has the potential to cause harm to the employee, especially in cases where mental health issues are identified. Once concerns are known, proactive steps need to be taken to manage risks and maintain a safe work environment.
- If a worker tells you they have a medical condition that may impact their work, the PCBU should consider seeking a medical examination to confirm the nature and extent of the condition so that it is accounted for in the workplace.
Employees in every industry will be affected directly or indirectly by mental health issues so it is crucial employers are up to sped as to their obligations.
If you have any questions regarding this issue please contact our team at Preston Russell Law.
