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Legal rights and responsibilities

What are the legal rights and responsibilities of employer and employee when someone has a mental illness?
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People affected by the symptoms of mental illness have the same rights – and responsibilities – as other employees. An employer, too, has both rights and responsibilities in dealing with employees who are affected.

The law can sometimes appear complex, or even conflicting, when an employee is affected by mental illness. Understanding relevant legislation, however, will not only ensure the employer is legally compliant, it will also give everyone confidence to manage any issues which arise, providing helpful framework and guidance to ‘do the right thing’ for both the employee and employer.

Three broad areas of legislation are relevant to managing any issues that arise in relation to an employee affected by mental illness.

Discrimination

Discrimination in the workplace against someone with a mental illness (or other disability) is unlawful in Australia under the Disability Discrimination Act 1992 (DDA). All employers have a duty to be aware of how their conduct should be guided by the DDA, as well as any relevant State or Territory legislation. 

Privacy and Confidentiality

As with any other personal data they retain, employers have an obligation to ensure information about employees’ mental health is not recorded or disclosed inappropriately, in accordance with the Privacy Act 1988 as well as any relevant State or Territory legislation.

Workplace legislation

Employees with a mental illness have the same rights and responsibilities as others under the Fair Work Act 2009 (FWA) as well as any relevant State or Territory legislation covering occupational health and safety (OHS) and other areas.

Additional Resources

 

For more information on supporting people in the workplace, visit Mindful Employer.

 

Last updated: 1 March, 2019

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