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High Court states employers have responsibilities for staff mental wellbeing

Frances Thomas, BA, LLB (Hons), Senior Solicitor, Professional Conduct - Employment, Avant Law

Tuesday, 24 May 2022

High Court states employers have responsibilities for staff mental wellbeing

In a recent case,the High Court made it clear that employers must take proactive and meaningful steps to care for the mental health and wellbeing of employees.

The case involved a public prosecutor working in a specialist sexual offences unit. Like many doctors, her work involved an inherently high risk to her mental health and emotional wellbeing through vicarious trauma.

Unfortunately, her employer did not do enough to prevent and proactively manage the risks arising from the trauma. As a result, the prosecutor suffered a serious psychiatric injury as a result of her work and could not return to her job. She was ultimately awarded significant damages.

The decision is a sad reminder to employers that they cannot adopt a ‘wait and see’ approach where the work of their employees inherently involves psychosocial hazards.

Helpfully, the High Court decision provides guidance to employers about the steps they should take to comply with their duty of care for the mental health and wellbeing of employees.

Guidance from the High Court decision

  • Employers should conduct workplace health and safety risk assessments to specifically identify psychosocial hazards. In a medical practice, psychosocial hazards include violent or angry patients, distressed patients and extremely high workloads.
  • Employers should have specific measures in place to monitor the impact of work on workers who are subject to vicarious trauma. Employers should routinely consider whether additional protective measures are required.
  • The emphasis should be on preventative and proactive measures and not post-injury treatment measures, e.g. regular mandatory debriefing for front line staff.
  • Employers should assume that employees could suffer from a mental health injury as a result of the cumulative impact of vicarious trauma, or inherently mentally and emotionally demanding work.
  • Employers should not wait for staff to identify mental health hazards, but should actively try to identify the risks, e.g. by assessing workloads, by ensuring there are clear reporting frameworks and consultation with staff, as well as conducting welfare checks on staff.
  • Workplace mental health and wellbeing policies and processes should be ‘lived’ and not just documented, e.g. staff meetings should proactively include mental health and wellbeing components and managers should be trained on mental health safety.

Implication for practices

As practices return to ‘normal’ in a post-COVID lockdown world, you should expect to encounter staff whose mental health and wellbeing has been adversely impacted through COVID. Your work health and safety systems should be agile and proactive enough to prevent mental health and wellbeing injuries, or the exacerbation of an existing condition. We recommend that all practices have systems in place to manage psychosocial hazards. These systems should address the following issues at a minimum:

  • Recognising the warning signs of mental or emotional strain.
  • Taking feedback about workloads, interpersonal issues and resourcing seriously and consulting meaningfully with staff.
  • Debriefing with staff who experience vicarious trauma.
  • Implementing dialogue in the workplace about the mental and emotional impacts of work and the importance of self-care.
  • Importantly, as practice managers, owners and staff, are you looking after your own mental wellbeing and modelling good practice?

Employers should expect further statutory guidance on managing psychosocial hazards, e.g. in the Victorian government’s proposed Occupational Health and Safety Regulations 2017,which is expected to be followed as statutory changes in other states where the Work Health and Safety Act 2011 (Cth) has been adopted.

Useful resource

Resource: Safe Work Australia | Psychosocial hazards

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