Over time, understanding mental health issues has become paramount in an attempt to support the many people who suffer from psychiatric illness. As a result, this has been given greater recognition in New Zealand’s law – particularly employment law. As many people suffer from mental illnesses a balance must be struck between what the employer should know to support the employee in their role and what the employee should disclose that could affect their work. From an employment law perspective, it is important for employers to understand what questions are legally appropriate to ask when going through the process of hiring new employees. There is a fine line between inquiring about what an employee may need for support in their new job and asking a question that seems it will prevent a capable person being hired due to a mental health issue.
The Human Rights Act 1993 stipulates what is classed as discrimination when hiring a new worker. Section 21(1)(h)(iii) details that psychiatric illness is a prohibited ground of discrimination. Section 22 details that, where an applicant is qualified for the work in question, the employer cannot refuse to employ them on the basis of their mental health issue. This is classed as discrimination.
However, there are exceptions to this rule. An employer is justified in ascertaining whether the applicant will be able to complete the job to a satisfactory standard. Section 29 details that, in the case of a disability (psychiatric illness), it will not be discriminatory to deny employment to a person who needs specific services and facilities beyond what it is reasonably expected of an employer to provide the applicant to carry out the job to an acceptable standard. Further, the employee is under an obligation to detail anything that may significantly hinder their ability to do the job if it may harm themselves or others involved. Section 35 details that, if the employer can adjust the duties (without changing the nature of the role) so that they fall to someone else, the exceptions in the Act do not apply.
It is appropriate and important for an employer to ascertain the needs of an employee in an interview in order to determine whether the employer can accommodate the employee’s needs or whether the job will not fit them despite their qualification. Section 23 of the Act details that it is unlawful for any person to use any form of application for employment or make any inquiry of or about any applicant that breaches section 22. You cannot make an inquiry about something that filters people out in a discriminatory way. An employment lawyer would advise that any question related to mental health must be explained. The purpose of the question and what the information is being used for must be communicated to the applicant. This provides a safeguard that the information is not being used to discriminate.
If these questions are not adequately explained or the inquiries are of a discriminatory nature, the employer may also be in breach of Principle 1 of the Privacy Act 1993. Personal information is not able to be collected for an unlawful purpose. If you are asking a question with the purpose of discriminating, this is unlawful as per the Human Rights Act. If the information is being collected for a lawful purpose connected with the function or activity of an agency and the information is necessary for that purpose, there will be no breach. If inquiries related to mental health are needed in order to support the person in their role or to determine whether employment in the area would be safe for them and others, there will be no breach. However, the purpose of these inquiries must be explained to the applicant to justify the collection of information.
If someone is qualified for the role, you cannot omit to employ them on the basis of a mental health issue unless it falls within one of the exceptions within the Human Rights Act. It is important to note that you are able to ask questions about someone’s mental health, but these questions must be formulated for a specific purpose and this purpose must be communicated to the applicant. From an employment lawyer’s perspective, if this does not occur, the actions may be seen as discriminatory and a breach of privacy.