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Employment Agreements and Mental Health

30 May 2019

Brad McDonald, Partner at Godfreys Law has nearly twenty years’ experience in Christchurch’s employment law sector, advising both employers and employees.

The biggest employment issue facing Christchurch and New Zealand in the next ten years is going to be the spectrum of mental health, and mental illness in the workplace. The World Health Organisation predicts that by the year 2030, mental illness and workplace absences as a result of mental illness will be the single biggest issue facing workplaces. That’s only eleven years away.

One in four people in New Zealand will suffer from a mental illness in their lifetime. It’s the leading cause of disability globally, across the board. We’re only going to see a rise in mental health issues in the workplace. 

Pre-Employment Screening

Employers have a number of options available to them before hiring a new employee to try and pick the best person for your organisation. In Brad’s opinion, pre-employment screening is not carried out often enough, and when it is, it’s normally haphazard or only scratches the surface. Employers have to regard the law, such as the provisions in the Privacy Act and Human Rights Act, which set out what information they are allowed to gather and disclose, and making sure you’re not discriminating against anyone.

Nonetheless, with carefully crafted and considered questions, employers can obtain information that’s relevant to the role at hand, and whether someone can successfully carry out that role.

Think very carefully about the demands and requirements of the role before posting your job ad online. For example, if the role involves being a First Responder and delivering healthcare in stressful emergency situations, Brad believes it’s relevant to ask any potential candidate if they have suffered or currently suffer from Post Traumatic Stress Disorder (PTSD). Clearly, PTSD could be an issue in those sorts of circumstances. While Brad thinks you can ask those sorts of questions if it’s relevant to the job you’re advertising, it’s a different story how you act on that information in choosing whether or not to hire that person and if your actions are discriminatory under the Human Rights Act. There’s a two-stage process you need to work through.

Mental Health and Employment Agreements

The best protection an employer can use when bringing a new employee on-board is your employment agreement. It’s critical that your employment agreements are fit for purpose regarding mental health issues. Does your employment agreement have a specific clause which allows you to send your employee for a medical assessment in future, not just for physical injuries, but also mental health issues or illnesses? If an employee raises a mental health issue in your workplace, they have already given consent to you in writing to be tested, examined or assessed by a specialist medical practitioner in that field who can give you a report so you can understand those issues more clearly before making further decisions.

The relevance of a medical report is twofold. Firstly, getting an appreciation or understanding of what your employee is suffering from in a medical sense. Secondly, the report can help you figure out what to do next. The report should include some recommendations from the medical professional in terms of management, treatment, expected duration of illness and outline to you the kinds of duties that employee can safely carry out in the workplace.

Real Employment Solutions

If an employee causes an incident or disruption at work, and they claim their actions were influenced by a mental illness, employers must be aware of their obligations under the law. The worst thing an employer can do is start towards disciplinary proceedings without stopping to think everything through.

We can help employers across Christchurch and Canterbury manage these complex and tricky scenarios, because of our experience with these kinds of issues across the employment sector. We get alongside our employer clients to guide you through the process, and run it for you if necessary. We can be your trusted advisor who gives you the right answers when the hard questions arise.

If you want to know more about managing and responding to mental health issues in the workplace, contact the employment law team at Godfreys Law.

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