Managing employees with a suspected mental illness calls for professionalism and an understanding of the legal and ethical issues involved. By Steven Booker

Most employers are proactive in trying to eliminate the risk of physical injury to their employees. However, less emphasis is placed on managing the risks posed by employees with suspected psychological illnesses, such as stress conditions and depression.

For employers who suspect that an employee may be affected by a psychological illness, understanding the personal and organisational challenges, while constantly keeping in mind the legal ramifications, may be indispensable.

The legal framework

While legislation nationally varies, in New South Wales, for example, the primary focus of occupational health and safety legislation is the elimination of physical injury. However, Section 3 of the OH&S Act 2000 (NSW) indicates that one of the Act's objectives is to promote workplace environments adapted to employees' physical and psychological needs.

Recently, the WorkCover Authority of NSW has placed increased emphasis on the prevention of psychological injuries at work. As a result, it is highly recommended that employers are proactive in identifying and managing situations where employees may be unfit for work due to a psychological illness.

Failure to do so can expose employers to workers' compensation claims, occupational health and safety prosecutions, and legal action arising from an employer's failure to meet its duty of care to staff.

Common situations

Common situations employers may face with an employee with a possible psychological illness include:

• an employee reports that they have developed a stress-related illness - for example, an anxiety disorder - as a result of being bullied or harassed by other employees
• an underperforming employee raises a psychological illness - for example depression - as justification for poor performance or misconduct
• an employee is repeatedly absent from work or exhibits a repeated pattern of uncharacteristic behaviour for which there is no apparent cause
• an employee reports developing a psychological disorder due to adverse situations in their personal life: for example, the divorce or death of a close family member.

How should employers respond?

Managers and supervisors are not expected to diagnose or treat psychological illnesses. Indeed, there are risks in becoming too involved.

It is also important to avoid making assumptions that any employee who exhibits erratic behaviour has a psychological illness. The behaviour may simply reflect personal difficulties or changes in an employee's circumstances that can be resolved without treatment.

However, it is possible that an employee is experiencing a mental-health problem that goes beyond being "stressed-out" and requires professional help. Employers are responsible for ensuring that by remaining at work, employees with a suspected psychological illness do not pose a risk to their health or safety, or other staff.

The safety risk to other people at the workplace arises from the fact that dealing with employees with psychological illnesses can be stressful, especially if the employee exhibits aggressive or self-harming behaviour or suicidal tendencies.

In most situations, the appropriate first step is to discuss with the employee whether they believe there is a problem, and if so, whether they consider it is work related.

Before meeting with the employee, do some research to find out what assistance your organisation might be prepared to offer them. Do you provide an employee assistance program where the employee can speak with a counsellor on a confidential basis? Is there a doctor who could recommend a psychologist or psychiatrist to conduct an independent medical assessment of the employee if this becomes necessary?

When meeting with the employee, it is crucial that you minimise their stress, not increase it. Be honest, up-front, professional and caring. Explain the behaviours or performance issues that have raised your concern about their mental health and ask them for their view of the situation. Use open questions designed to encourage them to discuss the problem and seek support.

In doing so, however, remember your job is not to probe the employee's personal life or diagnose the illness, if any. Even if you suspect the employee has a particular psychological illness, don't try to put a label on it. Focus on how the employee's fitness for work is of concern and how you want to help them deal with this issue.

If, following your discussion, you are unsure whether it is safe for the employee to remain at work, consideration of an independent psychological or psychiatric assessment is highly recommended. Ask the employee whether they would consent to an assessment. If they agree, have them confirm their consent in writing. If they refuse, check whether their employment contract, a company policy or an industrial instrument that applies to them, for example a workplace agreement, contains a clause allowing the company to direct the employee to attend a medical assessment.

In the absence of such a clause, it is recommended that you seek legal advice regarding whether the employee can be directed to attend the assessment. It may also be necessary to stand the employee down on full pay until such time as an assessment can be arranged and the results considered by the company.

When arranging independent medical assessments for employees with suspected psychological illnesses, referral to a clinical psychologist or psychiatrist is preferable to the use of a general practitioner.

It is important to provide the medical professional conducting the assessment with a detailed account
of background information, including the reasons why the employer suspects the possibility of a psychological illness.

They should also be provided with the employee's job description and a clear set of questions they are asked to report on, the most important question being: Is the employee currently fit to perform the duties listed in the job description?.

In FCB Solutions at Work's experience, the majority of independent medical assessments that result in a finding that the employee is affected by a mental disorder also make a recommendation that the employee can return to work but must perform alternative duties until the condition is resolved. Perhaps this is because in many cases, a person's recovery from psychological illness will be assisted by allowing them to remain at work.

Ultimately, it is the employer's responsibility to determine whether:

1. the employee can return to work without posing a risk to their health and safety
2. if the employee returns to work, they will be able to perform their duties to an acceptable level
3. the employee will return to a workplace that is free from harassment or discrimination due to their condition.

In order to form a view on these issues, it is necessary for the employer to consider the available medical evidence regarding the employee's symptoms, treatment and prognosis, and the level of alertness, judgment and resilience that the employee's particular role requires.

Steven Booker is a Solicitor and Registered Psychologist at workplace relations firm FCB Solutions at Work. Although this article describes general considerations when managing employees with suspected mental illnesses, each situation presents unique challenges and a one-size-fits-all approach is not warranted. Employers faced with the situations described in this article are strongly recommended to seek legal advice.