There has been a growing awareness of the impact of mental health issues on workers and the workplace. If left unmanaged, these issues can lead to increased employee turnover, lower employee engagement and increased short- and long-term disability claims. The impact of mental health issues on lost productivity and employee turnover alone was estimated at $6.4 billion in 2011, and that number is predicted to grow to $16 billion by 2041, according to the MHCC.
When mental health issues arise from bullying or harassment in the workplace, they can expose the employer to legal actions and sanctions through human rights complaints, civil actions, grievances and/or enforcement or reprisal complaints under occupational health and safety laws. They can also lead to tragic incidences of suicide and incidents of physical violence in the workplace.
The high cost, disruption and toll of mental health issues — and a series of high profile incidents — have led to increasing calls for governments to use regulatory legislation to require employers to provide employees with psychologically safe workplaces. Some commentators, including researcher and mental health advocate Martin Shain of the University of Toronto, have suggested there already exists a legal obligation to provide a psychologically safe workplace.
In his paper, Tracking the Perfect Legal Storm, Shain argues the existence of the duty to provide a psychologi- cally safe workplace is supported by trends in human rights, workers’ compensation, tort, employment, labour, occupational health and safety and employment standards laws.
We urge caution in accepting this particular view without question.
A growing patchwork of law and potential sources of liability that touch on issues impacting workers’ psychological health and safety do exist. Laws may compensate workers for psychological injuries they suffer at work, loss of employment and other losses. The possibility of liability may provide reasons for employers to take action. They do not, however, establish a clear existing legal obligation to provide a psychologically safe workplace.
The majority of Canadian jurisdictions have now enacted workplace violence and harassment obligations within OHS legislation. Workplace violence obligations vary, but they are generally broad enough to encompass, among other things, threatened use of physical force, which includes statements or behaviour that could reasonably be interpreted as a threat of physical harm. Fewer jurisdictions have enacted workplace harassment provisions under OHS laws. The obligations under these OHS provisions are principally reactive and require the employer to respond to complaints, rather than to adopt proactive measures and procedures to prevent harassment (the OHS provisions in Saskatchewan’s OHS Act do contain some express obligations for employ- ers to prevent harassment).
Human rights legislation prohibits discrimination and, in many jurisdictions, harassment in the workplace on the basis of enumerated grounds. Employers may be found liable if employees are subjected to harassment on enumerated grounds in the workplace. However, these obligations are only engaged in relation to specific enumerated grounds (race, sex and religion for example) under human rights legislation. Thus, they may not extend to all workers and all situations of harassment or bullying.