Is an employee obliged to disclose a mental health condition?

If a person’s depression or anxiety does not affect how they do their job, they are not legally required to tell their employer about it. The decision to tell or not is an individual one.

Can an employer ask questions about a person’s disability?

The answer to this question largely depends on what the question is, when the question is being asked and the motivation for asking the question. For example, a routine question about disability, such as ‘Have you ever had a mental health problem?’ on an application form or during a selection process may result in excluding or disadvantaging applicants who have. If a question has this effect, it may be lawful indirect discrimination. Questions of this broad nature will rarely be justified by job requirements.

At other times, discussions, questions and examinations regarding a person’s disability and its effects may be legitimate, necessary and desirable in many cases. For example:

• to determine whether a person can perform the inherent requirements of the job
• to identify if any reasonable adjustments may be needed – in selection for employment or in the performance of work
• to establish rights, entitlements and obligations where disability is  relevant eg. sick leave, superannuation, worker’s compensation and other insurance.

The Disability Discrimination Act does not set out particular phrases or wording as permitted and prohibited. The lawfulness of enquiries or examinations under the DDA depends on whether they are for a legitimate purpose and are a reasonable means for achieving that purpose. Employers should ensure that:

• they know why they are collecting information and that the purpose is legitimate
• information is used only for the purposes for which it was properly collected and is protected against improper access of disclosure.

To reduce misunderstandings which could lead to fears of discrimination, employers are advised to make clear the purpose for which they request or require disability information. Failure to give appropriate protection to confidential personal information in relation to a person’s depression or anxiety may involve, or lead to, discrimination in some circumstances. It may also discourage disclosure and discussion of depression or anxiety related issues.

This article is from the BeyondBlue website. For this article and more, go to www.beyondblue.org.au.