How to Deal with Employees with Mental Health Issues: An Employment Law Perspective

Mental health issues are increasingly affecting New Zealand workplaces, creating challenges for both employers and employees. While employers are not expected to be mental health experts, they do have legal obligations to respond appropriately when an employee's mental health may be affecting their work. Taking a supportive, fair, and legally compliant approach can reduce risk and often lead to better outcomes for everyone involved. 

Recognising the Signs 

Mental health conditions can present in many ways, including increased absenteeism, reduced performance, difficulty concentrating, withdrawal from colleagues, emotional reactions, or noticeable changes in behaviour. Employers should avoid making assumptions or attempting to diagnose an employee. However, where there are signs that a health issue may be affecting work, it is usually best to address concerns early rather than waiting for problems to escalate. 

Starting the Conversation 

Managers should focus on observable behaviours and invite a discussion in a supportive manner. For example: 

"We've noticed some changes in your attendance and work performance recently and wanted to check whether there is anything affecting you that we should be aware of." 

The purpose of the discussion is not to obtain detailed medical information but to understand whether support may be required. Conversations should be handled sensitively and confidentially. 

Understanding the Legal Obligations 

Mental health issues may engage several legal obligations, including: 

• The duty of good faith under the Employment Relations Act 2000. 
• Health and safety duties under the Health and Safety at Work Act 2015. 
• Protection from disability discrimination under the Human Rights Act 1993. 
• The obligation to follow fair and reasonable employment processes. 

Employers should be particularly careful where a mental health condition may amount to a disability, as decisions based on the condition could give rise to discrimination claims. 

Obtaining Medical Information 

Where a mental health condition may be affecting an employee's ability to perform their role, it may be reasonable to request medical information. This could include a medical certificate, a report from the employee's treating practitioner, or, in some circumstances, an independent medical assessment. 

Employers should seek information relevant to employment matters, such as fitness for work, workplace restrictions, likely timeframes for recovery, and recommended accommodations. All medical information must be treated confidentially. 

Considering Reasonable Support 

Once an employer becomes aware of a mental health issue, they should consider what support or accommodations may assist the employee. Depending on the circumstances, this could include: 

• Flexible working arrangements. 
• Temporary workload adjustments. 
• Modified duties. 
• Additional supervision or support. 
• Time off for treatment. 
• Graduated return-to-work plans. 

The extent of any accommodation will depend on the employee's circumstances, medical advice, operational requirements, and the resources available to the employer. 

Managing Performance and Conduct Issues 

A common mistake is to treat a performance issue as purely disciplinary without considering whether a health condition is contributing to the problem. If mental health may be a factor, employers should first investigate the circumstances, obtain relevant medical information, and consider appropriate support measures before progressing formal action. 

Mental health issues do not, however, excuse all conduct. Employers may still be able to address misconduct or poor performance where appropriate, provided they take the employee's health condition into account and follow a fair process. 

When Medical Incapacity Becomes an Issue 

If an employee is unable to perform their role for an extended period, a medical incapacity process may need to be considered. Before reaching any decision, employers should obtain current medical evidence, consult with the employee, consider alternative arrangements, and assess the operational impact on the business. A fair and thorough process is essential. 

Conclusion 

When dealing with employees experiencing mental health issues, employers should focus on early intervention, open communication, appropriate medical information, and reasonable support. By balancing compassion with legal compliance, employers can minimise risk, meet their obligations, and create a healthier and more productive workplace. 

The team of specialist employment lawyers at DTI Lawyers are experts in these areas and can provide advice on managing employment issues which are impacted by mental health.  You can contact our specialist employment law team by phone on 07 282 0174, or by email [email protected]