Edwards Law employment law barristers Robbie Bryant and Kate Wilson discuss if there is a legal obligation for an employee to disclose their mental illness to their employer. Whether or not there is an obligation to disclose an illness (mental or otherwise), depends entirely on the nature of the illness, they write.
Consider the following scenario:
“My doctor says I am depressed and 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 my firm and my career. Do I have to tell my employer about my illness?”
The key question that arises from the above scenario is: is there a statutory and/or common law duty on employees to disclose mental illnesses to employers?
The short answer to this question is: it depends. A thorough analysis of the relevant facts is required. Quite possibly the most important consideration is the nature of the illness that has been diagnosed. For example:
1. on the one hand, if an employee is diagnosed with (or already has) a mental illness that has the potential to harm the employee or others, and/or, it has a real possibility of detrimentally impacting the employee’s ability to perform their role, then, in our view, there is a duty on the employee to disclose that illness to his/her employer;
2. on other hand however, if an employee is diagnosed with (or already has) a mental illness that is unlikely to cause harm to the employee or others, or, it does not have a real possibility of detrimentally impacting the employee’s ability to perform their role then, in our view, there is unlikely to be a duty to disclose that illness to his/her employer.
The following two cases illustrate the above points.
Cook v Allied Investments Ltd  NZERA Auckland 426 concerned pre-employment representations made by an employee, Mr Cook about “physical, medical or others conditions which may affect how [he performed] the job [he] applied for”. Mr Cook did not disclose any such conditions to Allied. It subsequently came to Allied’s attention that Mr Cook failed to advise it of two medical conditions. Allied subsequently terminated Mr Cook’s employment for this failure.
The Authority determined that Allied could rely on Mr Cook’s failure to disclose these conditions to justify dismissal. This was because the medical conditions could have led to a “dangerous environment [which] put [Mr Cook] at risk, [and] potentially his employer at risk”. Relevantly, Mr Cook held a position where he was “in sole charge of a large factory using dangerous chemicals in the dead of night”. The Authority also stated the following, in respect of an employee’s obligation of good faith in such circumstances:
“it is not acting in good faith for an employee who knows information about their own circumstances which they ought to realise is relevant to the nature of employment, to withhold that information from the employer”.
Imperial Enterprises Ltd v Attwood  2 ERNZ 740 similarly concerned pre-employment representations made by an employee about medical conditions. Within a pre-employment form, the employee, Ms Attwood was asked if she had “any medical problems of any kind”. Ms Attwood disclosed an ailment relating to a hip joint problem. She did not disclose that she suffered from irritable bowel syndrome and a pre-cancerous condition called leukoplakia: this was in a dormant form and was being monitored by Doctors. Part way through her employment, Ms Attwood became unwell. This resulted in her being admitted to hospital, and being absent from the workplace on number of occasions.
Imperial, unhappy with Ms Attwood’s absences, invited her to a meeting to discuss the reasons behind her absences. During this meeting, Ms Attwood advised Imperial of the two additional ailments. Imperial determined that her failure to disclose these ailments justified dismissal. The Employment Court disagreed with Imperial: it found that the two undisclosed ailments did not have a serious impact on Ms Attwood’s employment. Thus, the Employment Court found Imperial’s dismissal of Ms Attwood to be unjustified. It is important to note that the Employment Court placed a lot of emphasis on the medical evidence supplied by Ms Attwood to support her assertions that the two undisclosed ailments did not have a serious impact on her employment.
In our view, whether or not there is an obligation on an employee to disclose an illness (mental or otherwise), depends entirely on the nature of the illness. If there is a real possibility of that illness having a serious impact on an employee’s ability to perform their role, or the illness places the employee or others at risk, then disclosure is required. Absent such possibilities, disclosure is unlikely to be required.
With the above in mind, our view is that the fictitious employee referred to in the scenario at the beginning of this article would be required to disclose the illness. From our perspective, the combination of prescribing medication and leave to recuperate suggests a serious illness that has a real possibility of seriously impacting the employee’s ability to perform their role; subject to the nature of medication prescribed and the clinical diagnosis. This could have negative repercussions for the employee, the firm and the client. Accordingly, our view is that it is likely that the good faith requirements in the Employment Relations Act 2000 create a duty to disclose the illness in these circumstances.
On a slightly less legalistic note, our view is that employees should be encouraged to raise mental health issues, particularly those caused by a workplace environment. Studies have shown that working is an important aspect of a person’s life which can assist with recovery from mental illness. As such, it seems important that these issues are openly discussed and dealt within the workplace.
Robbie Bryant joined Edwards Law in 2011. He completed his law degree in 2010 at Waikato University and prior to this obtained diplomas in business and management from Auckland University of Technology. Robbie frequently represents clients in negotiations and mediations and appears before the Employment Relations Authority, Employment Court, the ACC Review Authority and the Human Rights Commission. Robbie advises on all areas of employment law (contentious and non-contentious). Robbie also provides in-house training for employers on all areas of employment law. Robbie has contributed to the NZ Business Magazine, assisted with developing the practical employment law modules for practitioners for the College of Law (New Zealand), and is regularly called on to present at various seminars for external organisations such as the Employers and Manufacturers Association (New Zealand) and Legalwise Seminars. Contact Robbie at email@example.com or connect via LinkedIn
Kate Wilson graduated from the University of Waikato with a Bachelor of Laws and a Bachelor of Social Sciences in 2015. Kate began her legal career in general practice, including a career highlight as Junior Defence Counsel for a Multi Defendant High Court Trial. Kate has a broad range of experience and exposure to court processes. She brings a depth of knowledge and understanding to her clients’ needs. Kate advises on a range of matters, including: Assisting clients to prepare for new employees; restructuring and redundancy; attending on more contentious issues such as personal grievances, mediation and negotiation, preparing for disciplinary and performance matters, exit negotiations; educating clients around employment terms and conditions; and, providing advice on the due diligence around the purchase of a new business with a particular focus on the employment aspects. Contact Kate at Kate@edwardslaw.co.nz or connect via LinkedIn