Wellbeing in the Workplace – a legal perspective

July, 2022

By: Samantha Butcher

Graduate Solicitor, Legal Services EMA

How to say “no” to burnout

Employers have really been pushed to the limit the past couple of years. The result of this is that staff are under pressure, have increasing deadlines and have had to learn how to work from home. Staff are now back in the office either full-time or part-time, and it’s clear that the employee shortage is putting stress on existing employees. Employers have an obligation under the Health and Safety at Work Act 2015 (HSWA) to make work a safe psychological place.

One of the worst things an employer can receive is a concern from their staff citing burnout or stress as an issue. Faced with this type of concern, what is an employer to do?

Health and Safety obligations

Employers have an obligation under the HSWA to eliminate, minimise or isolate risks to workplace health and safety. With this in mind, how do we apply this to workplace burnout or stress?

The obligation extends to cover hazards and risks which include physical, biological, chemical, atmospheric, or psychological hazards. Psychological hazards include workplace stress and burnout. WorkSafe NZ defines stress as “the interaction between a person and their (work) environment and is the awareness of not being able to cope with the demands of one’s environment, when this realisation is of concern to the person, in that both are associated with a negative emotional response.”

Case law has recognised burnout and found effects like high levels of absenteeism and sick leave, high staff turnover and low morale to be present in Attorney-General v Gilbert [2002] 1 ERNZ 31, where the employee was working for years in an environment with inadequate staffing levels. FGH v RST [2018] NZEmpC 60 involved a situation where the employee was undergoing “intense” performance management over many months. The employer was held to have failed to comply with the applicable obligations to maintain a safe and healthy work environment. Consequently, the employee’s unjustified disadvantage grievance was established.

How can you create a safe workplace?

Having practices and policies in place will set out frameworks for a mentally / psychologically safe workplace. This can include weekly check-ins from managers, a set of behavioral expectations as well as a formal process for swiftly dealing with employee concerns.

Employers should look at the policies they currently have in place. Health and Safety policies are a start, but many policies may only manage physical hazards. Employers could add psychological wellbeing into their pre-existing Health and Safety policies or create a new Wellbeing policy. Wellbeing is important in the current workplace given the multiple factors employees are facing. A Wellbeing policy may specify tools for employees to use when communicating interpersonal concerns, may have questionnaires or risk matrices to assist managers when dealing with employee workload, or even their return to the office. It could illustrate employee’s rights around asking for temporary help, variations in employment, and even legislative flexible working requests.

Not only is it vital to understand staff wellbeing at work, it’s also important to understand your employee’s personal circumstances. As an employer, you have an obligation to treat all staff fairly and reasonably. This includes considering individual circumstances to assess how staff are managed. For example, an employee with high sick leave levels and performance issues should be managed differently to someone undergoing chemotherapy. To address sensitive issues, an employer could consider agreed time off or reduced hours to accommodate personal circumstances. For performance-related issues, an employer may consider training or more focused performance management.  

The key to creating a safe workplace is to support employees with access to practices, tools, policies, and management. Communication around the implementation of any changes to practices will encourage staff to access those tools and policies. It will also help them feel comfortable expressing their concerns if they need help. A wellbeing practice of regular ‘check ins’ with staff is another great way to learn how to manage workplace wellbeing.

Tools for employers

First Steps is a wellbeing platform specifically designed to help business owners manage workplace wellbeing. They have a free Workplace Wellbeing Risk Diagnostic Tool which has been designed to provide insights into the wellbeing of your workplace. Once you complete an assessment using the tool, you will be provided with free relevant resources, learning and tools that will be of immediate benefit for your business.  

You can also reach out to the EMA Legal team for assistance in reviewing your practices, contracts and policies, or even creating a Wellbeing policy to better protect and support your organisation.

For more information, or to see how EMA can help you, please contact our EMA Legal team via email – Jessica.Zhang@ema.co.nz.

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