We explore whether employees are legally obliged to disclose a history of mental health difficulties to their employers and explores why a “don’t ask, don’t tell” culture in the workplace should be avoided.
One in four of us will experience a mental health difficulty in our lifetime. Some 75% per cent of adults with a mental health difficulty had that problem before the age of 25 years.
Disclosure
Disclosure means deliberately informing someone at work about your mental health history. This disclosure is a major step. The dilemma of whether to disclose adds to the anxiety of those returning to work after a mental health difficulty. It remains a burden for those with a past history of a mental health issues. People ask themselves many questions: "should I disclose or remain silent? What is the safest thing for me to do? What will happen to me or my career if I disclose? What’s the legal position?".
There is good reason to be concerned about this issue. Many people fear their employment and career will be damaged if their employer comes to know about their mental health difficulty. People with a history of mental health problems worry about negative reactions from their employers and/or from their colleagues. These experiences are indicative of the continuing stigma faced everyday by people with mental health difficulties in Ireland.
Misinformation
Part of the problem is misinformation. Many people are unaware of their rights and their responsibilities. This is understandable given the sizable body of legislation and case law that covers the issue, but, thankfully, today a number of very helpful, brief guides for employees and employers are available
Mental health issues are classified as ‘disabilities’ in employment legislation. A broad range of mental health difficulties qualify for this legal definition, and so many people are protected by this legislation. At a minimum, these laws are there to protect citizens from discrimination in the workplace, but the legislator’s ambition is surely greater than this. The aim is to develop a mentally health work environment* by encouraging employers to take "appropriate measures" making "reasonable accommodation" of the person with disability.
What legislation exists around workplace mental health?
There are two main equality laws; The Equality Employment Acts (1998-2011) and The Equal Status Acts (2000-2011). In addition, there is legislation relating to health and safety at work - the Safety, Health and Welfare Act (2005) - and there is legislation in relation to data under the General Data Protection Regulation.
Discrimination means treating a person less favourably in the workplace than another person in a similar situation on grounds of disability. There are nine grounds for discrimination, and disability including mental health problems is just one of them.
Mentally healthy working environments
A mentally healthy work environment is one in which everything reasonably possible is being done to reduce the negative impact of stress.
An employer is expected to make "reasonable accommodation" for someone with a mental health difficulty. It follows that appropriate measures must be put in place to ensure that someone with a mental health difficulty can access employment, participate or advance in employment and undertake training. Appropriate measures must not place an undue burden on the organisation.
Mental health awareness is an essential part of modern human resources management. Everyone benefits from creating a mentally healthy work environment, so that the skills and contributions of those with a history of mental health difficulties are not "lost" to the employer or society.
Problems with absenteeism, presentism, staff recruitment and staff retention are all reduced through respect for the human rights of employees with mental health difficulties. The creation of a mentally healthy employment culture improves staff loyalty and increases productivity.
Is disclosure a legal requirement?
Still, it may surprise people to know that there is no obligation on any citizen to disclose their mental health difficulty to their employer. Neither is an employer entitled to ask whether an employee has ever had a mental health difficulty. Simply put, people with a history of mental health difficulties have the same rights to privacy as anyone else.
There may be no need to disclose the illness to anyone. It may be that a particular mental health problem or difficulty has nothing to do with an individual’s work or their ability to perform a particular set of tasks.
Ultimately, it is for the employee to decide. A decision to disclose will be influenced by the timing, the effect of their disability on their work, the stability of the work environment, and the culture and work environment of the employing organisation.
The legal framework attempts to balance common sense and fairness. It’s necessary for both employees and employers to understand what’s involved. Both parties have rights and responsibilities. Ideally, both the employee and the employer will contribute to the building of a mentally health working environment.
No one gains in a culture of “don’t ask, don’t tell”. Everyone gains in a culture that is mentally well.
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This article was written by Professor Jim Lucey, our former Medical Director and a Consultant Psychiatrist with us here in St Patrick’s Mental Health Services until 2023.
More on mental health at work
References and resources
- Equality and Mental Health: How the Law Can Help You or Equality and Mental Health: What the Law Means for Your Workplace, both from the Equality Authority.
- The Health and Safety Authority's Work-Related Stress: A Guide for Employers.
- SeeChange's mental health information for the workplace.
- Wellness and the New Workplace webinar from the WIMS Live campaign.
- Your Equal Status Rights Explained, from the Irish Human Rights and Equality Commission.