Breaking the stigma of mental health stigma

By Helen Colquhoun and David Smail | Wednesday, 26 Jun 2019

According to recent studies, one in six Hongkongers suffers from a diagnosable mental illness. With cramped living conditions, a strict education system and some of the longest working hours anywhere in the world, Hong Kong is uniquely poised to encounter challenges around workplace mental health and wellness.

There continues to be a stigma around mental health – particularly in Hong Kong. Employees may still be reluctant to disclose health issues, experience some form of discrimination, bullying or victimization when raising issues, and have managers who feel ill-equipped to respond appropriately. Similarly, employers can face challenges in knowing how to proactively promote workplace wellness and also how to support and manage employees who exhibit signs of mental ill-health or become too unwell to work.

Breaking the Stigma

The first challenge is getting businesses, management and staff alike, to talk about mental health and wellness. It is too often seen as a ‘weakness’ to seek help for mental health issues.

And it is not an all or nothing approach. Whether we like it or not, stress is part and parcel of our daily lives, particularly for all those in professional services and those working for multinationals across time zones. We cannot (and should not) pretend that we can completely eradicate stress – in fact, stress often makes us more productive and helps us cope under high-pressure situations in the workplace. However, we have historically been poor at identifying and tackling the point at which good stress turns into bad stress, from nervous energy into complete burnout.

What are the Legal Risks?

Mental health is not a particularly well-protected characteristic in Hong Kong. While some jurisdictions in Asia Pacific have introduced legislation that specifically targets workplace bullying – notably Australia and (more recently) South Korea, Hong Kong still lags behind. Nevertheless, there are several risk areas which HR should be mindful, one of which is disability discrimination.

Disability Discrimination

It is unlawful for an employer to discriminate against or harass any person on the ground of their disability, and this applies to all stages of the employment process – recruitment, employment, promotion, transfer, and ultimately termination. As the definition of ‘disability’ is extremely wide in Hong Kong, covering both physical and mental conditions as well as those of a permanent and temporary nature, illnesses such as depression, anxiety disorder and post-traumatic stress disorder all benefit from protection.

In practice, discrimination risks tend to materialize when dealing with employees who are on long-term sick leave. It is notoriously difficult for HR to manage these types of cases sensitively. It is not an easy task to strike a balance between being sympathetic to the individual’s situation, and managing the needs of the business and other colleagues who may be feeling the impact of lower attendance and reduced productivity.

If an employee brings a discrimination claim, the employer will typically rely on the defence that the employee is unable to fulfill the inherent requirements of the particular role. However, even then the employer has a responsibility to consider making reasonable adjustments unless these would impose an unjustifiable hardship on the business. What exactly is considered to be an “unjustifiable hardship” will of course change depending on the situation, but it requires more than mere lip service – particularly for long-serving employees.

Finally, it is worth bearing in mind that employers are vicariously liable for the wrongful acts of employees unless they can show they took all reasonably practicable steps to prevent the discrimination from happening.

5 Practical Tips for Employers on Mental Health

In light of the above, employers are increasingly treating the issue of mental health more seriously. To reduce the risks of incurring liability, employers should consider the following practical tips:

1. Employee Assistance Programmes ("EAPs") are confidential hotlines designed to provide support to employees in crisis situations. If your business offers an EAP, consider whether it is fit for purpose. EAPs can provide an invaluable lifeline for employees who feel they have nowhere else to turn, and it helps demonstrate that the business is taking at least some steps to prevent harm in the workplace. But is the employee being put through to the right person at the EAP – ideally someone locally on the ground – and is the EAP officer equipped to handle conversations around mental health? If not, EAPs can potentially do more harm than good, as they can make individuals feel unsupported and even more alienated.

2. Revisit your workplace mental health training and disability discrimination training and ensure it is up to date. Too often, training content is old and lacks relevance to real-life work situations. This can create difficulties if the business is later trying to demonstrate to the court that it has taken all reasonably practicable steps to prevent harm from occurring in the workplace.

3. Look out for warning signs. Mental health training should be as much about empowering other colleagues to pick up on the warning signs as it is about helping the individual themselves. Staff often do not know what to look out for, or do not know what to say, and need guidance. As a business, to avoid liability under general negligence principles, it is helpful to demonstrate that you have given staff the tools they need to handle these issues.

4. Don’t assume that just because you have not been directly informed, you don’t need to do anything. A court will ask what a reasonable employer would or should have known which means being proactive in seeking to identify issues.

5. Maintain accurate sick leave records and keep an open dialogue with employees who are on long-term absence. If they are left away without any contact, this can often leave them feeling alienated and not wanting to return to work.

Helen Colquhoun and David Smail

Helen Colquhoun, Partner and Head of Employment Hong Kong, DLA Piper

David Smail, Senior Associate Hong Kong, DLA Piper

Mental Health stigma Hong Kong mental illness mental wellness workplace legal risks Discrimination Employee Assistance Programmes EAPs

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