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Employment

Discrimination in employment was the most common type of discrimination reported by participants and stakeholders.³⁶ Consultations and the literature suggested that people with a mental illness are susceptible to discrimination when they are merely looking for work and once they are in the workforce.³⁷ For example, people with a mental illness may also have to take time off work because of their illness and as a result, they may face discrimination while they are away or when they return.³⁸

Because I was sick at Christmas and had time off, they realised that I had the illness. When I rang up and said “I am right, can I come back to work?” they said “we will call you” and then it basically just fizzled right out.³⁹

I was in employment, and I was away sick, and my employer rang my GP and the GP told her that I had a mental illness. My employer walked up to me and said “people with a mental illness shouldn’t be doing what you are doing” and so I resigned on the spot.⁴⁰

Or as one solicitor indicated, people with a mental illness may be dismissed from employment as a result of the manifestation of their illness, where this affects their work performance and relationship with other employees. For example:

The majority of cases we get … is [where] a person who is already in employment and whose mental illness has manifested, alleges that they are about to be or have been [terminated], and that the reason given is their mental illness. Associated with that might be a breakdown in relationships with people and the employment in the workplace.⁴¹

As a result, service providers reported that people are unwilling to disclose their illness for fear of being discriminated against when they are looking for a job and once they are employed.⁴² A conciliation officer from HREOC provided a case study of a woman who after disclosing that she had a mental illness had had an offer of employment withdrawn:

A woman who was working in a temporary position with a government service agency complained that she had been discriminated against when an offer of permanent work was withdrawn. On her pre-employment medical questionnaire she indicated that she had received treatment for depression. The employer’s medical officer recommended that she undergo a psychiatric assessment. The psychiatrist was of the view that the complainant would not be able to cope with the stressful environment in the workplace concerned. The offer of employment was withdrawn.⁴³

People are not required by law to disclose their disability. However, if they don’t disclose their mental illness, they may not be able to request that certain adjustments be made in the workforce.⁴⁴ In addition, if a person does not disclose that they have a mental illness, then their mental illness may not be taken into account if they have trouble fulfilling the job requirements.⁴⁵

Not all discrimination on the basis of disability in employment is unlawful. If an employer can demonstrate that a person is unable to meet the “inherent requirements” of the job then discrimination is not unlawful.⁴⁶ However, simple adjustments (that do not cause “unjustifiable hardship” to the employer) may allow a person with a disability to meet the requirements of a job.⁴⁷ An employer is not allowed to discriminate against a person with a disability just because they require certain adjustments to be made.⁴⁸ However, if an employer can argue that an adjustment will cause unjustifiable hardship to them, then it may be lawful for them to discriminate against a person with a mental illness.⁴⁹