Mental health and well-being of employees – do employers have a duty of care?

Employment

Greg Boyed, a well-known and talented New Zealand news presenter, passed away suddenly in August. In a statement released by his family, they said Greg suffered from depression. His death reignited the public conversation around New Zealand’s high rates of mental illness and suicide, and the role the workplace and employers have to play in the mental health of their employees.

In an article released in the following days, fellow journalist Rawdon Christie claimed managers have a duty to care for their staff. While most would agree that employers should care for the wellbeing of their staff, including their physical, mental and emotional wellbeing, are they legally required to?

The Health and Safety at Work Act 2015 defines health as being both physical and mental. Employers as Persons Conducting a Business or Undertaking have a primary duty of care to provide a work environment that is without risk to both health and safety, so far as is reasonably practicable.

In this context, it means taking reasonably practicable steps to ensure the workplace does not cause risk to employees’ mental health. The two most common causes of mental health issues in the workplace are workplace related stress, and bullying and/or harassment.

Practically, this requires more than an employer ensuring they have robust policies and procedures in place. At the outset, it requires an acknowledgement that stress, bullying and harassment are real hazards, and preventing and managing those hazards is as important as the physical hazards in a workplace. It is also crucial to create a culture where employees feel comfortable raising mental health concerns, and those concerns are acknowledged as real.

Although there have been very few health and safety cases in either the employment or civil courts dealing with breaches by an employer to look after its employees’ mental health, it seems that this is about to change. WorkSafe NZ CEO Nicola Rosie recently indicated that WorkSafe will look to start prosecuting in relation to mental harm, specifically given the quality of material now available for employers on bullying and harassment.

Employers who fail to adequately address and manage workplace stress, bullying and harassment are increasingly likely to find themselves answering to the employment institutions, the Court, and/or WorkSafe.

A mentally healthy workplace is not just good risk management though, it is also good for productivity and staff retention. There are a raft of free resources available in New Zealand, including WorkSafe’s guidelines on bullying, the Mental Health Foundation’s Five Ways to Wellbeing at Work Toolkit, and the Lifeline’s recently released Zero Suicide Workplace pilot.

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