Christa Ludlow, Principal Consultant of Weir Consulting, discusses whether an employee has an obligation to inform their employer that they have a mental illness. Research shows that lawyers are over-represented when it comes to mental illness, she writes.
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The scenario: My doctor says I am depressed and she has prescribed anti-depressant medication. She says I should take some leave. I believe I am coping with the help of the medication. I am working on a big case which is very important for the firm and my career. I’m worried that if my employer knows about my condition it will become office gossip and will affect how people treat me at work. Do I have to tell my employer about my illness?
Lawyers who have a mental illness are often concerned about telling their employer. At any time one in six people of working age are experiencing mental illness, according to a 2014 University of NSW study. There is evidence that the legal profession is over-represented in that group.
Despite growing awareness about mental health, there are still reasons for concern about how mental health issues are treated in the workplace. In deciding how to handle your condition, the following factors should be considered.
Is your workplace mentally healthy?
Increasingly attention is being focused on psychosocial risks at work. These are risks associated with psychological injury, and they are created by work factors like poor job design, unfair treatment, unreasonable work demands, lack of social support and quality leadership, and experiencing conflict and trauma at work.
If your workplace has some or all of these features, it is questionable whether you can continue to work there safely while you are unwell as the risks of further psychological harm will be greater. Perhaps it has even contributed to your depression.
Can you perform your job?
Do you have any concerns that you may not be able to perform your duties to the required standard? It is advisable to inform your doctor what your job involves and get advice about whether you can perform the requirements of your role. If you fall short and you haven’t told anyone that you were ill, you risk being disciplined, demoted or losing your job. If you are a lawyer and you are unable to meet the required standards of competence and diligence, it could lead to a complaint about your conduct. Consider the risks before deciding to keep working.
Do you have to tell your employer?
This will depend on the nature of your illness, if and how it affects your capacity to perform your job and any specific conditions in your contract. In some roles it may be mandatory to inform the employer of health conditions for work health and safety reasons. This information should be treated confidentially, but it seems you think this may not happen.
Find out if your employer has a policy dealing with personal information, or wellbeing in the workplace. If they don’t have one or you believe that they are not aware of best practice, consult a standard guide such as SafeWork Australia’s guide to work-related psychological health and safety so that at least you know what you are entitled to expect.
You can also obtain guidance from mental health advocacy organisations such as Beyond Blue.
There is strong evidence that continuing to work or returning to work after an illness is generally good for health. Participation in the workforce can be a crucial part of the recovery process.
Some lawyers have spoken publicly about how mental illness has affected their lives and work and this has helped others. If you are willing to be open with your employer, this may also assist your employer to become more aware of its responsibilities and lead to better treatment and acceptance of mental illness in the workplace.
Discrimination law and adverse action
If you are treated less favourably because of your condition, you could make a complaint to the Anti-Discrimination Board under the Anti-Discrimination Act 1974 (NSW), or to the Human Rights Commission under the Disability Discrimination Act 1992 (Cth).
Adverse action which disadvantages an employee for a discriminatory reason is also contrary to the Fair Work Act 2009 (Cth).
Failing to allow a worker with a disability to return to work may constitute discrimination under state or Commonwealth legislation if it is done on the grounds of the disability. The person complaining of discrimination on the basis of a particular attribute or status has to show that he or she has received less favourable, or unfavourable, treatment and in some jurisdictions their treatment must be compared with the treatment they would have received if they did not have the relevant status or attribute.
The employer’s point of view
The employer has to consider not only your health but the health of other employees, as well as its business interests. In order to protect these it may wish to put some conditions in place around when and how you work and the nature of the work that you do. A worker is under an obligation to take reasonable care for his or her own health and safety, but also to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.
To sum up
Basically there is no right or wrong answer in this situation. If you are uncertain, I recommend this great interactive tool on the Heads Up website, which helps people in your situation to weigh up the pros and cons and come to a decision which is right for them.
Christa Ludlow is a lawyer with over 20 years’ experience in employment law and administrative law, and a qualified coach and mediator. She is a Principal Consultant with WEIR Consulting. WEIR provides workplace conflict resolution, investigation, coaching and training services to clients in the public and private sectors. Contact Christa at christa.ludlow@weirconsult.com.au. You can also find WEIR Consulting on Facebook and LinkedIn
