Who do you think is responsible for identifying and mitigating the psychosocial risks within a workplace?

If you think the responsibility rests solely with the individual, you will be surprised. According to the High Court, the employer has a significant responsibility, and many workplaces are leaving themselves open to potential legal ramifications.

Recently, two significant court decisions brought the issue of an employer’s responsibilities in relation to psychological safety to the forefront.

When solicitor Zagi Kozarov became so mentally unwell at work she had to quit, her workplace argued it wasn’t their responsibility. She has been awarded $435,000 in damages by the High Court, as a result of winning a psychiatric injury case after her job caused her to develop Post Traumatic Stress Disorder (PTSD).

Ms Kozarov was working at the Victoria’s Office of Public Prosecutions (OPP) as solicitor in the Specialised Sexual Offences Unit (SSOU). Her role involved working on child sexual abuse claims, where she had to view graphic and disturbing images as part of the evidence.

Ms Kozarov sought damages as she claims she suffered chronic PTSD and a major depressive disorder as a result of recurring exposure to trauma in her case work. It was determined there was a foreseeable risk and that the OPP breached its duty of care.

The signs of psychosocial injury were evident, and her employer failed their legal duty to recognise and assess the psychosocial hazards, and to take the relevant steps to prevent psychological injuries in the workplace.

In Ms Kozarovs’ case, the OPP specifically failed to:

● provide an active and enforced occupational health and safety framework

● provide training for management to identify red flags and respond to staff showing heightened risk

● conduct welfare checks

● maintain a flexible approach to work allocation and rotations to different departments

Meanwhile, a racing club in New South Wales was ordered to make a major payout after a long-time manager was subjected to an “overbearing micromanagement style”.

It was found the Club was negligent in preventing the employee from experiencing psychiatric harm and that the CEO breached the company’s contract by withholding her benefits and denying her bonus.

The decisions in both cases are a reminder to employers they cannot adopt a ‘wait and see’ approach or place the onus of the mitigation of these risks solely on the individual.

The ISO45003 Standard Psychological Health and Safety at work – Guidelines for managing psychosocial risks released in June 2021 has provided workplaces with best practice. Although not mandatory (yet) regulators in some states releasing codes of practice and strategies. Read more in a previous blog post, or checkout the quick reference guide to the ISO45003 here. These will help organisations recognise hazards posing risk to psychological health are no less harmful than physical hazards.

Key takeaways for employers

What can employers do to prevent psychological injuries in the workplace?

They can:

● Ensure concerns in relation to excessive workload are appropriately addressed and responded to

● Ensure their organisation offers for counseling which is conducted in a private space

● Conduct frequent welfare checks with employees

● Ensure workplace health and safety policies are implemented and training is provided to all employees

● Ensure changes in employee behaviour are noticed and addressed (e.g., unexpected absences, overworking, underperforming etc.)

● Provide mental health training to management to equip them to handle situations regarding employee mental health

● Create a psychologically safe environment that highlights the importance of mental health and have an ‘open door’ approach where employees can feel safe to open up about mental health concerns.

● Have leaders who have the knowledge and skills to approach conversations and ‘walk the walk’

● Identify elements and risk of jobs that create a risk to an employee’s mental health and wellbeing

● Go beyond policies and aim for more systemic change in the way work is designed and managed.

References:

• Psychiatric injury due to prolonged workplace trauma – a warning for employers from the High Court!
• Employment and Safety: High Court confirms employer’s duty to protect employees from psychiatric injury and other developments
• High Court states employers have responsibilities for staff mental wellbeing
• Woman wins $2.8 million for being ‘micromanaged’ at work