Employer’s duty to protect the mental wellbeing of employees

Mental health is currently the primary cause of lost working days in the majority of western countries, and the decrease in productivity at work as a result of employees’ poor mental health is also a significant issue for employers.

With an increasing awareness and focus on the importance of good mental health, there is a lot of uncertainty for employers with respect to:

1. How to manage risks to employees’ mental health; and
2. What to do when it becomes evident that employees are experiencing mental health difficulties.

Managing the risks

Employers find it easier to understand the duties they hold with regards to safety, but it is important to remember that the Health and Safety at Work Act 2015 (“HSWA”) also aims to protect employees’ health and wellbeing, and that WorkSafe routinely emphasises the importance of these in the workplace.

Both the HSWA and the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (GRWM regulations) further reinforce the requirements on an employer to protect the health of their workers. “Health” is defined under the HWSA as both a person’s physical and mental health.

Under the HSWA, a “person conducting a business or undertaking” (i.e.  an employer) has a duty of care to ensure (among other things), so far as is reasonably practicable, the health and safety of its workers.

Employers therefore have an obligation to protect their workers from work related risks/factors that could cause harm to their mental health, and must take steps to eliminate, or if that is not possible, minimise those risk.

There are some obvious workplace hazards that can impact on an employee’s mental health, such as bullying, which an employer should be alert to and have procedures in place to deal with. However, there are other less obvious mental health risks for employees, which employers should also consider. Other such prominent hazards include workplace fatigue and/or stress caused by an employee’s workload.

Fatigue is a hazard that WorkSafe has focused on in recent times. In the case of WorkSafe New Zealand v Michael Vining Contracting Ltd, an employee of Michael Vining Contracting Ltd (MVCL) had a fatal crash whilst driving his tractor home from work. On the day of the employee’s death, the employee had worked 16.75 hours, and had worked a staggering 197.25 hours in the fortnight leading up to his death.

Consequently, WorkSafe considered the most likely cause of the crash to be fatigue. MCVL was charged with, “failing to ensure the safety of workers when they were at work” by, “exposing its workers to a risk of death or serious injury arising from fatigue.”

The risk associated with the employee’s fatigue was said to have been exacerbated by extended work hours, and the employee driving home in the dark on poorly lit roads in the early hours of the morning.

WorkSafe provides detailed guidance on the steps an employer can take to reduce work related stress and fatigue, to assist in fostering a healthy and safe work environment. These guidelines can be found at https://worksafe.govt.nz/topic-and-industry/work-related-health/work-related-stress/ and https://worksafe.govt.nz/topic-and-industry/work-related-health/fatigue/

What to do when an employee suffers from mental illness

Once an employee has informed an employer (or an employer otherwise becomes aware) that they are stressed or suffering a mental health condition, an employer should make enquiries to whether this has been caused (or exacerbated) by the workplace or the employee’s working conditions.

If so, an employer should work with the employee to try to eliminate, or if that is not possible, minimise the problem which is impacting on the employee’s mental health.

In addition to the obligations under the HSWA (and related regulations), an employer must also continue to meet their employment law obligations (both statutory and contractual). Such obligations include treating the employee in good faith, offering ongoing support, complying with the statutory obligations in relation to sick leave, not discriminating against the employee, and maintaining confidentiality.

We recommend that employers do more than the minimum and offer to pay for counselling through a confidential Employee Assistance Programmes (also known as EAP services), and/or adjust an employee’s hours or duties in order to assist the employee in improving their mental health.

Regardless of whether the employee is suffering from a work-related mental health illness or not, employers will best serve their employees by trying to ensure that mental health is not a taboo issue in the workplace. We have seen employers invite external speakers into the workplace to discuss such topics openly with employees, and run training on stress awareness and relaxation techniques.

We have observed the effectiveness of such initiatives first hand, and encourage employers to foster an environment of open discussion to assist both them and their employees in managing their employees’ mental health more effectively.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan