Health and safety obligations have reached new heights
1 August 2019
Recent years have seen a significant increase in the health and safety obligations of employers.
The introduction of the Health and Safety at Work Act (HSWA) in 2015 saw new responsibilities for employers to manage work-related risks to health and safety. All employers (and other persons conducting a business or undertaking) now have the primary responsibility to ensure, so far as is reasonably practicable, the health and safety of its workers, including providing a healthy and safe work environment.
These changes came alongside an increased focus on mental health and wellbeing. The HSWA defines health as being both physical and mental and the courts have heard a range of cases where the alleged failures to provide a healthy and safe workplace related not to the risk of physical injury, but rather the risk of mental harm or the exacerbation of existing mental health problems.
These risks present further complexities where an employee is being subjected to disciplinary or performance improvement processes. While the employer does have the right to manage poor performance or misconduct, these processes are often stressful and challenging for employees, and the employer is not relieved of their health and safety obligations merely because there are performance or conduct issues.
A recent Employment Court case, FGH v RST, demonstrates the extent to which an employer must go to provide a healthy and safe workplace when undertaking such processes.
The case concerned Ms H, an employee of a government organisation who was subject to a performance management process. When she did not meet the specified expectations, a disciplinary process was commenced against her. A month later, an additional disciplinary process was commenced for inappropriate language Ms H used towards a manager.
Ms H suffered from several mental health disorders, including ADD and an anxiety disorder, which she disclosed to her employer during the performance improvement process. At the commencement of the second disciplinary process, she became so ill she could not attend work for several weeks.
Ms H raised a disadvantage grievance asserting that her employer failed to provide a safe and healthy workplace while managing her performance, on the basis that she was bullied by her managers throughout the process and that insufficient steps were taken to mitigate the risk to her health.
The Court concluded that the conduct of Ms H's managers was merely legitimate criticisms and did not constitute bullying.
However, that was not the end of the analysis as to whether the employer had provided Ms H with a safe and healthy workplace.
The Court noted that the employer recognised that Ms H's medical conditions presented a health and safety issue that needed to be managed. Once made aware of the medical issues, the employer sought to adjust the process to accommodate Ms H including extending timeframes, providing a summary of discussion points prior to meetings, postponing and reprioritising meetings, allowing her to move desks, allowing an objective participant in meetings, offering her EAP and giving her extra breaks to attend the gym.
On that basis, the employer contended that it had taken all reasonably practicable steps to prevent harm to an employee which it foresaw at the time.
What the employer failed to do, however, was to obtain adequate medical advice on the employee's condition.
The Employment Court held that because the process was causing the employee medical distress the employer had the responsibility to seek further medical advice regarding the appropriateness of continuing with the performance process in light of her medical conditions.
Ms H had only provided the employer with scant medical information. The employer did not attempt to confirm that information and had only obtained general guidance on ADD from EAP.
Accordingly, despite the measures implemented to accommodate Ms H, the employer did not obtain adequate medical advice and the performance management process was seen to have become oppressive in the circumstances as it was entirely foreseeable that she would continue to react adversely if the formal processes were maintained.
This failure of the employer to meet their health and safety obligations, in addition to other procedural flaws, formed the basis of an unjustified disadvantage grievance.
This Employment Court decision demonstrates a high threshold for employers in these situations. When managing the performance of an employee with health issues, an employer needs to be actively and adequately informed of any health conditions raised by the employee and be conscious of this information while undertaking the process so as to discharge their health and safety obligations.
Further, FGH demonstrates that where health issues are raised, an employer cannot rely on the employee or those assisting the employee to provide further medical information of their own volition, rather the employer is obligated to work with the employee to obtain medical advice which is adequate in the circumstances.
FGH sends a strong message from the Court that employers cannot discharge their health and safety duties in respect of mental and physical health issues if they don't actively seek to understand those issues first.
