An employer’s issue
Managing workplace health and safety has run the gamut from providing ergonomic chairs and PPE to ensuring appropriate evacuation pathways are clearly marked. Emerging trends from WorkSafe New Zealand, however, indicate that the mental wellbeing of staff should fall under an employer’s obligation to provide a ‘safe’ workplace.
Under the Health and Safety at Work Act 2015, an employer is required to ensure, as far as reasonably practicable, the health and safety of their workers. The legislation defines ‘health’ as both physical and mental health. Historically, most employers have understood this to mean that asking for unrealistic workloads to be met or using bullying tactics on their staff could result in a breach of the Act or a successful personal grievance claim. It was generally accepted that the management of the mental wellbeing of staff outside the employer-employee relationship was assumed reasonably out of the employer’s responsibility or control.
It appears the sentiment regarding this previously held assumption is changing rapidly in both New Zealand and Australia. Workplace health and safety agencies from both countries have stepped in and issued notices to employers who have failed to manage their employees’ general mental wellbeing, particularly where action could have been taken to prevent mental harm or distress.
Recent New Zealand example
An example of this new emphasis is WorkSafe issuing an improvement notice to Te Aroha College in late 2021 for failing to prevent ‘psychosocial risk’ to its staff. Interestingly, this situation arose from rumours circulating about two teachers falsifying permission slips that the school did not take steps to stamp out. The rumours, that were running unchecked, were seen to cause undue distress to the two teachers involved and WorkSafe intervened. This action came as a surprise as WorkSafe publicly states it does not ordinarily step in to ‘individual’ circumstances. By intervening and making ‘an example’ of Te Aroha College, WorkSafe has signalled an increased focus on this area of workplace health.
Australia’s health and safety agency, Safe Work Australia, has issued similar warnings. In 2021 it took action against the Wyndham Clinic Pty Ltd. The clinic was prosecuted for failing to provide structures to prevent bullying in the workplace, including employee-employee bullying. In this instance, a senior employee was seen to use profanities and verbal abuse against another employee (including saying other people did not like that person and did not like working with them). Wyndham Clinic was ordered to pay over A$79,000 in fines and costs for a failure to provide procedures to prevent an employee’s mental harm.
These actions from government agencies indicate that employers must be much more proactive to prevent mental distress in the workplace. In the Te Aroha College situation, the origin of the rumours is unknown, and it was never alleged that the rumours were employer led. The implications are that WorkSafe expects an employer to take steps to proactively manage employee-employee bullying and/or risks to mental wellbeing. In most workplaces, particularly large organisations, employee–employee bullying may be hard to identify. For example, in workplaces such as construction sites, there is a largely accepted behaviour of workplace ‘banter’ that an employer may have always deemed appropriate or, at the very least, considered relatively ‘good natured’. In large organisations where employees are spread over many sites there may be no oversight of employee-employee interactions.
So, what is an employer to do?
Employer steps
A first step for all employers is to ensure there is a suitable and up-to-date workplace mental wellbeing policy. This policy should be very clear on what steps can be taken by an employee who is feeling unduly stressed in the workplace — for all manner of reasons. This should extend beyond typical workplace bullying and into areas such as workload management, limiting and preventing exposure to aggressive or abusive clients/customers, and to management of uncertain situations.
The policy should also include the steps an employer will take to provide support and care to their employee when stress is caused. The policy should be provided to all employees, and employers should take steps to frequently remind them of the availability of support pathways.
Every workplace is unique in its health and safety needs. The Act states that an employer should take steps that are ‘reasonably practicable’, so it’s probably safe to assume you aren’t expected to tuck your staff member into bed at night (in fact, please don’t!), but it is clear that more steps need to be taken. For some employers, enhancing how you take care of employees’ mental wellbeing could include:
- Reviewing your workplace policy
- Providing your employees with multiple avenues of support and communication (not just through their employer or manager)
- Routine staff meetings to raise mental health conversations
- Activities in your workplace to help employees manage stress, for example, meditation workshops
- Having conversations with individual staff members who appear sad or withdrawn to identify any workplace triggers
- Frequently reminding your staff of the clear steps they can take to communicate mental distress to their employer, senior management or external support providers
- Discussing how you as the employer or senior manager propose dealing with upcoming uncertainty, such as Covid business continuity planning
- Anonymously surveying your staff to monitor wellbeing and ‘pressure points’, and
- Regularly auditing your own workplace to check for compliance in workplace health and safety procedures and reassurance that existing systems are working.
Managing the health and safety of employees has always been a changing landscape. It is now clear, however, that there is a shift towards enhancing the policies and procedures that employers must have in place to protect the mental wellbeing of their staff. Given the uncertainty of working in a pandemic-related environment, employee wellbeing is already fragile. Taking the time now to revamp internal policies to help overall staff health is a worthwhile exercise not only to protect the mental wellbeing of your valuable staff, but also as a pre-emptive step for enhanced government-driven focus on this topic.