Mental Health is Health & Safety: Employers’ Obligations to Provide a Mentally Safe Workplace

An employer has an obligation to protect workers against a risk of harm if it is foreseeable, and to take proportionate steps considering that foreseeable risk. This recent case in the Employment Relations Authority is a timely reminder of an employer's duty to provide a safe workplace (i.e. take all reasonable steps to maintain a safe workplace, that meets health and safety requirements), including taking steps to address the risk of mental harm, such as that which may be caused by workplace bullying.

Quinton-Boundy vs Waimakariri District Council – the background

In this case, the employee raised concerns regarding the behaviour of her Manager and her Executive Assistant, and ultimately resigned claiming unjustified dismissal on the basis that the organisation had breached its duty to provide a safe workplace.

The organisation argued that the bullying by the other employees was not foreseeable, that it had treated the issues as a ‘conflict of interest’ and ‘managerial issue’ in terms of the Manager potentially favouring the Executive Assistant, and that the employee had not ‘formally’ raised her concerns. This was not accepted by the Authority Member, who considered that the organisation was aware of previous incidents in respect of the Manager and Executive Assistant, including the undermining of the organisation’s HR team, and that a complaint had been made by the subject employee to the Chief Executive – the formality of the complaint being irrelevant.

Also noted by the Authority Member was the honest and frank evidence of the organisation’s witnesses, including for similar incidents, and that four witnesses who gave evidence broke down while being questioned, some 18 months since their experiences they were still feeling the emotional and psychological impact of that time. Significant remedies were awarded.

Employer Obligations

This case is a good reminder for employers that:

• When you become aware of a complaint/concern, there is an obligation to deal with it, irrespective of whether it is raised formally or informally. In this case, the Authority noted that an independent investigation was required, and the organisation knew that, but did not take those steps.
• Even where it is known that an employee will be leaving the organisation soon, an employer has an obligation to act.
• An employer must manage risks, including psychological risk, where risk of harm is foreseeable. An employer must take proportionate steps considering that risk.
• There is an intersection between employment obligations and health and safety obligations. Both must be considered and managed.

The Role of Independent Workplace Investigations

If in doubt, seek advice – early intervention and investigation, in particular where there has been previous indication of this behaviour, is imperative. In these circumstances (where there is bullying/undermining alleged by two employees in different levels of the organisation against others), an independent investigation is recommended to ensure impartiality and robustness of reporting.

DTI Lawyers can assist with advice on managing psychological risk in the workplace and both Andrea Twaddle and Anna Jackman undertake independent investigations, and both hold the AWI Certificate in Workplace Investigations. You can contact us on 07 282 0174 or anna@dtilawyers.co.nz and andrea@dtilawyers.co.nz.