It is illegal for employers to discriminate against workers or
job seekers on the basis of mental illness or mental disability.
However, evidence suggests that such discrimination is not
Over half of job seekers with mental illness report
It is against workplace laws to discriminate against people with
a mental illness, but a national survey of 1,386 people with a
diagnosed mental illness, conducted by the Centre for Mental Health
at the University of Melbourne, found that more than half of those
with a mental illness who were looking for work believe they were
rejected because of their mental health problem. The survey was
published by the Australian & New Zealand Journal of
One person told researchers he would have been better off
telling job interviewers he'd just been released from prison:
"Sometimes I think it's worse than telling them you have
been in jail. Once you mention it their face changes and their body
language changes and you know you won't get the job".
Length of period of unemployment proportional to decline in
Research conducted by Deakin University and published by the
journal Occupational & Environmental Medicine also found
that the mental health of people who are unemployed deteriorates in
proportion to the length of time they do not have a job and this
becomes a further obstacle to finding work.
In effect, a person with a mental illness who is unemployed can
be caught in a vicious cycle of discrimination by potential
employers which leads to a further deterioration of their mental
health, which in turn further decreases their chances of finding
Unemployment, mental illness and suicide
It is a sobering fact that suicide rates are higher among people
who are unemployed than among those who are employed. These rates
rise even higher during a recession.
A study published in the International Journal of Epidemiology revealed that
suicide rates among unemployed men in Australia increased by 22%
during the global financial crisis. The suicide rate for unemployed
women rose by 19% over the same period.
Laws prohibiting discrimination against people with mental
Around three per cent of Australians – 600,000 people
– are diagnosed with a severe mental disorder. More than
three million Australians have had a mild to moderate condition. It
is far more common than most people believe.
Section 351(1) of the
Fair Work Act 2009 states: "An employer must not take
adverse action against a person who is an employee, or prospective
employee, of the employer because of the person's... mental
Unfortunately, it is difficult to apply laws that protect
against workplace discrimination to people rejected when applying
for a job unless there is proof that they were discriminated
against. What usually happens is that the applicant simply does not
get the job and is not given a reason.
Alternatively, the applicant who has revealed a mental illness
during the application or interview process is just told that they
didn't quite fit the requirements or that another applicant had
better qualifications. It is relatively rare for an employer to
say: "We don't want you because you have a mental
illness". If this happens, the job applicant can bring a
discrimination claim against the employer.
Employers have a legal obligation to avoid discrimination
Employers would be wise to get legal advice to be sure they are
complying with the law, as penalties can be severe. Employers have
legal obligations to avoid discrimination, ensure privacy, avoid
adverse actions and make sure the workplace fulfils health and
While there may be safety reasons why a person with a mental
illness cannot do certain work, the employer needs to be able to
demonstrate that alternatives were offered. It is worth bearing in
mind that unfair dismissal claims can be costly for employers.
On a positive note, the survey did find that 24 per cent of
employees with a mental illness reported positive treatment at
work. However, 11 per cent said they were avoided by colleagues,
and 14 per cent felt they were discriminated against.
While there is still stigma and ignorance surrounding mental
health, employers are becoming more aware that mental illness is
fairly common. Two thirds of people with a reported mental illness
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).