Improving workplace mental health is in everyone's interests, and we all have a role to play. Both employers and employees have formal rights and responsibilities under discrimination, privacy, and work health and safety legislation.

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Things to know

Discrimination
The Australia-wide Disability Discrimination Act 1992 (Cth) and equivalent state and territory laws make it unlawful to discriminate against, harass or victimise people with disabilities – including; temporary, permanent, past, present or future, actual or just presumed mental health conditions.

In a workplace setting, discrimination could occur:
- during the recruitment process, in advertising, interviewing and selecting candidates
- when determining terms and conditions of employment such as pay rates, work hours and leave
- in selecting or rejecting employees for promotion, transfer and training
- through dismissal, demotion or retrenchment.
The Act defines ‘discrimination’ to include both direct and indirect discrimination. This means an employer’s failure to make reasonable adjustments for a worker with a mental health condition may constitute discrimination, even when on the face of it no ‘direct’ discrimination has occurred.

The Australian Human Rights Commission has developed a brief guide to the Disability Discrimination Act 1992 (Cth).
Healthy and safe workplaces
Workplace health and safety (WH&S) legislation requires workplaces to be, as far as is reasonably practicable, physically and mentally safe and healthy for all employees. This means steps must be taken to ensure that the working environment does not harm mental health or worsen an existing condition.

This legislation acknowledges that employees have a responsibility for their own health and safety as well.

Get an overview of existing and proposed WH&S laws at SafeWorkAustralia

Download Safe Work Australia's reasonably practicable guide (PDF)

Find your local WH&S regulator:
Privacy

Under the Australia-wide Privacy Act 1988 (Cth) and similar legislation in some states and territories, employers must observe confidentiality and respect the privacy of each employee.

This means that an employee’s mental health condition can’t be shared with anyone without their permission, unless there is a direct risk to their health and safety or that of others. Any information can only be used for the purposes for which it was disclosed, such as arranging adjustments in the workplace to support the employee.

Information for employers

View transcript

Asking questions

Employers have the right to ask certain questions about an employee or potential employee’s mental health condition where it is legitimate, necessary and desirable. This may be:

to determine whether the person can perform the inherent requirements of the job
to identify if any reasonable adjustments may be needed, either in the selection and recruitment process or in the work environment and role
to establish facts for entitlements such as sick leave, superannuation, workers’ compensation and other insurance.

The overall test is whether the employers enquiries are for a ‘legitimate’ purpose. For example, it might be legitimate to ask an employee questions about their medication if the job involves operating machinery.

Making reasonable adjustments

Reasonable adjustments are changes to the workplace or an employee’s role to help them stay at or return to work after an absence. These changes can be temporary or permanent, and are required by law as long as the employee can fulfil the core requirements of the job – the elements that can’t be altered.

It also makes good business sense (e.g. to retain skilled/experienced staff) to make temporary adjustments for staff, even if they cannot meet the core requirements of their role. However, this is not a legal requirement.

Find out more about helping others stay at work

"Mental health can affect anyone at any time. Every workplace has a duty of care to do what they can to support employees by offering access to professional assistance, and a level of understanding as they work through this issue."

Debbie

Preventing harassment

The Disability Discrimination Act 1992 (Cth) also requires employers to prevent harassment to an individual experiencing a mental health condition, including physical and verbal abuse.

In practice, this means it’s important to be proactive in identifying conflicts, gossip and bullying in the workplace, and act quickly to resolve any issues.

Resources

Information for employees

If your mental health condition does not affect how you do your job, you have no legal obligation to tell your employer about it. This applies whether you are a current employee, or a potential employee going through the recruitment process.

WH&S laws protect your right to a safe workplace, but you also have responsibilities under the same legislation. You must take care of yourself and others and cooperate with your employer in matters of health and safety. This applies to all workers, whether they have a disability or not.

As well as this, under the Disability Discrimination Act 1992 (Cth) your ability to work safely is an 'inherent' or essential requirement of any job. If your disability could reasonably be seen to create a health and safety risk for other people at work, then your failure to tell anyone about that risk could be a breach of your obligations under WH&S legislation.

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Legal rights and responsibilities

Things to know

Discrimination

Healthy and safe workplaces

Privacy

Information for employers

Asking questions

Making reasonable adjustments

Preventing harassment

Resources

Information for employees

Find out more

Visit the Coronavirus Mental Wellbeing Support Service

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Things to know

Discrimination

Healthy and safe workplaces

Privacy

Information for employers

Asking questions

Making reasonable adjustments

Preventing harassment

Resources

Information for employees

Find out more

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