A bump in a recent hiring process, which centered on the issue of disclosure of a prior mental health issue by a candidate, prompted me to delve a little more into the question of whether someone should disclose these personal issues during an interview. Or, in fact, whether an employer should ask about someone’s mental health at all.
In this latest blog post, I wanted to explore some of the questions and concerns candidates and interviewers might have when it comes to discussing mental health conditions during the interview process.
Interviews and asking about mental health
A potential employee cannot be denied employment due to a mental health issue. And candidates are under no legal obligation to disclose a mental illness in a job interview, even if they are asked questions about their mental health.
If the employer does make any requests for medical information at the interview stage, the request must specifically relate to the candidate’s capacity to perform the normal duties of the job. Questions should be asked in such a way that they are sensitive and understanding, and again should not be asked for any reason that might discriminate against the candidate.
Otherwise, if the request does not relate to an explicit and correct job description, the employer may open themselves up to a claim for discrimination. For instance, the employer might ask a question about a mental health illness and the candidate discloses that they do have a mental health condition. In this situation, the candidate might then be rejected for the position, and they could make a claim against the employer, making the case that the reason they were not hired was because of their illness.
The responsibility to disclose
If a potential employee does have a mental health condition that could affect their ability to perform their role or increase the risk of injuring themselves or others, they do have an obligation to disclose the disability.
Ideally, organisations should offer a workplace environment where staff feel safe and comfortable in disclosing any pre-existing or emerging medical conditions.
Consider that both prospective employees and employers are deserving of empathy when making the difficult decision to disclose a health issue. They are likely worried about the stigma associated with mental health or are fearful about troubling others with their problems. Some are afraid of showing their emotions. They may also be concerned about privacy, and it’s vital that their disclosure and any medical information is not shared without their consent.
Once an employee has made a disclosure, it is appropriate to privately and confidentially talk about the condition. Then reasonable accommodations can be instituted.
Employer obligations in the workplace
Employers have occupational health and safety obligations to all of their employees, and this includes those who may be challenged with a mental health issue. Rather than ignore obligations, it makes good business sense to ask whether there are practices in the workplace that could cause or aggravate the ill health of employees.
Are there actions or incidents which are responsible for stress or anxiety? If so, how can reasonable accommodations or adjustments be made to support the worker? For example, can flexible work arrangements be made in their schedule or workload to minimise the sort of stress that may have caused previous issues? By offering a supportive workplace environment, employers enable their workers to address small problems as they come up, rather than waiting until they become big problems.
Mental health and wellbeing in 2021
Neglecting the issue of mental health in the workplace comes at a significant cost to businesses. Yet many employers do not realise how prevalent mental illness is. Prior to the pandemic, almost 45% of Australians between the age of 16 and 85 reported having a mental disorder during their life at some point. Depression and anxiety are common disorders that many of us will face at some time in our lives.
Living with the reality of COVID-19 has added many stressors and uncertainties to daily life, all of which have an impact on people’s mental health and wellbeing. In addition to worrying about contracting the virus, employees are faced with the stress of the impacts of social distancing measures, isolation, loss of employment and localised lockdowns to stop outbreaks.
Lifeline—Australia’s largest crisis support and suicide prevention service provider—reported receiving upwards of 85,000 calls in the four weeks to 24 January 2021, an increase of 10% from the four weeks to 26 January 2020, and a 21.4% increase over the first four weeks of 2019.
Safe and healthy workplaces benefit employers in many ways. Companies that implement robust strategies and policies for creating healthy work environments are more likely to:
· avoid the cost and time involved in disability discrimination complaints
· minimise employee absence from work and high turnover
· reduce stress in the workplace and increase morale
· avoid legal disputes and fines over breaches in OHS laws
· receive greater employee loyalty.
There are legal obligations that employers need to know about when it comes to their employees’ health and safety. Both employees and prospective employees are protected from workplace discrimination by Australian workplace law—The Fair Work Act.
Fundamentally, an employer cannot undertake an adverse action based on 13 characteristics listed in the Act, including a worker’s physical or mental disability. Adverse actions may include dismissal, treating an employee differently, or not hiring a person.
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