To Disclose or Not to Disclose

Vince Scopelliti - Wednesday, October 10, 2018

For many employees, one of the most difficult aspects of navigating the modern workplace is deciding whether to disclose a mental health issue.

Not every employee is required to be open about their condition, and there is often a fear of the potential consequences for their career if they are. 

We take a look at when an employee is obligated to disclose, what employers must do, and the pros and cons of disclosure. 

what does the law say about the employee's responsibility? 

When dealing with mental illness in the workplace, employees are not required to share details of their condition with employers unless there are legitimate concerns that it may affect their ability to perform their role properly. 

For example, employees who operate heavy machinery but are struggling with alcoholism, drug addiction or are reliant on certain types of medication should advise their employers, so that they do not risk their safety or that of their colleagues. 

Failing to share this information could mean that the employee is in breach of their obligations under Work Health and Safety legislation.

what must employers do?

Commonwealth legislation determines that it is unlawful for employers to discriminate against their employees for a variety of reasons, including discrimination on the basis of a mental health condition. 

According to the Disability Discrimination Act 1992 (Cth), employers cannot act in a discriminatory fashion towards employees based on past or future conditions, temporary or permanent conditions, or actual or imputed disabilities. 

Types of discrimination which employees with mental health conditions may face include:

  • Direct discrimination, for instance when a candidate is not hired or an employee is disciplined inappropriately because of their mental health. 
  • Indirect discrimination, for example requiring all employees to eat lunch in the staff lunchroom - which for instance might cause difficulties for employees with anxiety. 

Choosing not to make adjustments for an employee who is struggling with their mental health is a form of discrimination. 

There are also obligations on employers around disclosing an employee's mental health status to others in the organisation. All employment relationships include an inherent requirement of confidentiality, which means that employers are prevented from discussing or disseminating information about their employees' mental health. 

Exceptions can be made in circumstances where the information must be shared in order to prevent or lessen a serious and imminent threat to the life or health of the employee or as required by law.

pros and cons of disclosure

Workers who don't have an obligation to disclose often struggle with the pros and cons of sharing this information with their employers and co-workers. 

A clear advantage of disclosing this information is that colleagues are aware of the circumstances under which the employee is operating and can provide a level of social support. Managers who know that a team member is struggling with mental health issues may well be more sympathetic, and can assist by providing more flexible working arrangements, lessening workloads in times of crisis, or otherwise ensuring that the workplace is generally accommodating of the employee's needs. 

Further, ill-founded rumours or gossip may be avoided by an employee being open about the difficulties they are facing and could help de-stigmatise mental health issues in the workplace. 

Disadvantages include sharing very private information with colleagues, which may be disseminated to other people in the organisation and have the potential to result in harassment or discrimination. This may be particularly relevant in circumstances where the mental health condition is temporary or does not affect the ability of the employee to perform their duties adequately.

mental health and wellbeing in the workplace

Employees can contribute to good mental health at work by:

  • Taking care of themselves
  • Avoiding known triggers
  • Participating in exercise
  • Taking regular breaks during the work day
  • Staying up to date with any medication 
  • Relying on a support network (both inside and outside work)
  • Avoiding external influences like excessive alcohol or drugs. 

If you would like more information on mental health in the workplace, check out our series of articles on Mental Health in the Workplace. WISE Workplace can also assist employers with drafting and implementing policies relating to mental health disclosure.  

Can You Deny Access to Workplace Investigation Documents?

Vince Scopelliti - Wednesday, July 18, 2018


Parties involved in a workplace investigation will often wish to gain access to documents that form part of the process. A difficult question for investigators is when - or if - it will be appropriate to release particular information. The reason for the request and the nature of the information will be key considerations, plus the investigator must find the best way to ensure that the access process is fair and transparent. As a recent case involving Australia Post reminds us, investigators need to carefully consider any decision to deny access to workplace investigation documents.

When to disclose information 

During the course of a workplace investigation it is entirely appropriate to keep parties informed of progress. In many cases, it will be quite simple to provide general information that keeps parties up-to-date, yet preserves any necessary privacy boundaries. One regular complaint from those under investigation is that they were 'kept in the dark' at every turn of the process. However, overt secrecy is often not necessary; disclosing information about delays, the nature of inquiries and the broad substance of allegations for example will generally not be problematic.

Another situation where information will need to be provided is when the investigator is required to do so by law. This could include as a response to a subpoena, summons or other court / police request, and should be responded to promptly.

Why should information be disclosed?

In many ways, it is simply professional best-practice to keep stakeholders informed of the progress of an investigation.

One specific advantage in providing regular updates and briefings is the effective management of expectations. Investigations can leave people feeling anxious, and the process can become impeded if individuals are forced to continually complain about non-disclosure. By regularly providing information about the scope, goals and process of the investigation, the 'temperature' in the workplace can be kept under control.

Providing information is also necessary to ensure transparency and accountability. The investigative process should, as far as possible, be able to withstand outside scrutiny both during and following completion. If it is later revealed that one party received greater assistance or exposure to materials than another, the chances of utilising the investigation outcomes will be greatly reduced.

A case in point

In the case of 'LC' and Australia Post (Freedom of information) [2017] AICmr 31, an employee made an FOI request for information relating to a workplace investigation.

Australia Post declined the request on the basis that the material was exempt according to the 'personal private information' exemption under s47F of the FOI Act. However, the commission found that the exemption does not apply to information that is likely to have a 'substantial adverse effect' on a person subject to investigation.

Investigators must ensure that the process remains transparent, and that any and all decisions to prevent disclosure are carefully considered in accordance with the legislation.

ensuring procedural fairness

One common mistake made by new workplace investigators is to see procedural fairness as a lightweight idea without much application in the real world. We know from experience that nothing could be further from the truth. Those under investigation deserve to know the nature of allegations made, to be given the opportunity to be properly heard, to have a support person if needed, to be questioned by an unbiased individual, and of course to have all relevant evidence considered in the decision. Disclosing information in an appropriate way, and at the right time, can certainly assist the overall fairness of the process - and prevent problems in the future.

When not to disclose

Although transparency and fairness are important elements of the workplace investigation, there are times where information should certainly not be disclosed. The right to privacy might require the investigator to protect information such as addresses, sensitive personal material or intellectual property matters as examples.

Further, it might be necessary to redact documents in order to protect anonymity or to withhold certain aspects of an allegation. However, overall investigators must ensure that a party is not substantially disadvantaged by the non-disclosure - a fine balancing act indeed.

The Australia Post case confirms our own experience in conducting fair workplace investigations. We certainly know that each situation will depend upon the particular facts when it comes to disclosing information to the parties involved.

If you need assistance on whether or not to disclose information during an investigation process, WISE provides supported investigation services and are here to help.