Mental Health and the Workplace: Three Important Questions Employers Should be Asking

According to a report by beyondblue, one in five Australians admitted to taking time off in the last year because of their mental health. This significant number indicates just how important it is for employers to consider the mental health of their employees.

However, despite its importance, mental health often gets given the back seat in the workplace over other, more obvious health issues.

Employer awareness of responsibilities towards the mental health of employees won’t just avoid legal trouble, it can also boost productivity, assist with retaining staff and make the workplace more positive and enjoyable for everyone.

To assist employers with understanding their responsibilities with respect to mental health, we’ve provided answers to a few common questions.


  1. Can I ask my employee (or prospective employee) about their mental health?

Employers may ask their employees questions about their mental health so long as those questions have a “legitimate purpose”. For example, it may be legitimate to ask an employee about medications they are on if they operate heavy machinery.

However, under the Disability Discrimination Act 1992 (Cth) (DDA) and the Anti-Discrimination Act 1977 (NSW), employers cannot discriminate against their employee due to a mental health condition. This includes temporary, past, present, actual and even presumed conditions. If questions about mental health don’t have a legitimate purpose, there is a danger that they will be found to be discriminatory.

Before asking mental health related questions, employers should think very carefully about whether their question has a legitimate purpose.

When it comes to hiring, the general rule of thumb is that employers shouldn’t ask potential job candidates questions about their mental health. It’s difficult for employers to demonstrate that such questions during the recruitment process have a legitimate purpose.

The recent case of Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 heard by the New South Wales Civil and Administrative Tribunal (NCAT) acts as a warning to employers to be very careful about asking mental health related questions when hiring.

In this case, a bus and coach charter company were ordered to pay an unsuccessful job candidate $10,000.00 in compensation for discriminating against him based on his mental health condition.

The applicant, Mr Chalker, was a bus driver who had been diagnosed with borderline personality disorder. Mr Chalker was managing his condition through medication under the regular supervision of a psychiatrist.

Mr Chalker applied for a coach driving role with Murrays Australia.  The application form asked applicants if they had any medical conditions, disabilities or injuries that could impact their job performance. Mr Chalker answered “no” to this question.

Mr Chalker successfully passed the interview, during which he was required to take a driving test. He was informed that, upon successfully completing a medical, he would be offered a job.

During the medical, a nurse questioned Mr Chalker about the presence of drugs in his urine test. Mr Chalker explained that he was on medication and gave details of his condition to the assessing doctor. Mr Chalker complained about several of the doctors ensuing questions, claiming they were too broad and unrelated to his ability to be a bus driver.

In response, the doctor deemed Mr Chalker unfit pending further inquiries. Based on this finding, Murrays Australia declined to offer Mr Chalker a position.

The tribunal found that Mr Chalker’s actions were reasonable considering the circumstances. It was held that he was not required to disclose his condition during the recruitment process as it didn’t impact his ability to carry out the inherent requirements of the job.

As a result, Murrays Australia were ordered to pay Mr Chalker $10,000.00 for “pain and suffering” they had caused him.

This decision demonstrates the importance of understanding that anti-discrimination legislation applies to both current and prospective employees.


  1. Do I have to make adjustments or allowances for employees with a mental health condition?

Under Federal and State discrimination legislation, employers are required to make reasonable workplace adjustments for employee’s suffering from an impairment, such as a mental health condition. Failure to make reasonable adjustments for an employee suffering a mental health condition can amount to indirect discrimination under section 6 of the DDA.

Indirect discrimination happens where one employee with a disability is required to comply with a condition that employees not suffering a disability can comply with but which they struggle to fulfill due to their condition.

“Reasonable adjustments” have been found to be adjustments that don’t cause the employer “unjustifiable hardship”.

To avoid indirect discrimination, it’s imperative that employers develop clear reasonable adjustment policies. Reasonable adjustments for employees suffering a mental health condition could include the following:

  • A temporary change of duties;
  • Flexibility with work days and hours;
  • Ensuring social activities aren’t mandatory;
  • Factoring in short breaks;
  • Creating a mentoring program to match more experienced employees with similar skill sets to create a point of contact and support network for struggling employees.

In addition to making reasonable adjustments, the DDA requires employers prevent employees with a mental health condition from suffering harassment in the workplace. This includes physical and verbal abuse.

Unfortunately, bullying and harassment can go unnoticed in a busy workplace environment. Furthermore, employees suffering a mental health condition may react differently to certain repetitive comments or behaviours whether or not they were made in jest. Therefore, employers should ensure they develop clear harassment and bullying policies and provide regular training and support to staff members. It also pays for employers to be aware of the workplace chit chat to ensure it isn’t negative or exclusionary to certain employees.


  1. Is it lawful to dismiss an employee because of their mental health condition?

If an employee is unable to perform the inherent requirements of their role due to their mental health condition, then it may be lawful to dismiss them. However, before dismissing an employee, employers should think very carefully about whether there are any reasonable adjustments they can make to assist the employee meet their job requirements.

Additionally, its important that appropriate performance management systems have implemented to assist a struggling employee before dismissal is considered.

If you’re an employer or an employee and you’re still unsure of your rights and responsibilities with respect to mental health in the workplace, then it’s worthwhile checking out Heads Up.

Heads Up is an initiative developed by beyondblue and the Mentally Healthy Workplace Alliance. The Heads Up website provides a range of information, resources and advice about mental health for employers and employees to provide guidance on dealing with mental health in the workplace.

If you are struggling with your mental health, don’t hesitate to reach out for immediate support:

  • Lifeline: 13 11 14
  • Kids Helpline: 1800 55 1800
  • QLife: 1800 184 527
  • MensLine Australia: 1300 78 99 78
  • Headspace: 1800 650 890

Want to know more about Employment Law? Looking for an experienced solicitor in Newcastle, Sydney or the Hunter to assist you with your Employment Law matter? Call us on (02) 4929 7002, email us or complete an enquiry form.

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