[EMPLOYMENT] Managing Mental Health Triggers At The Workplace

• Published date: 20 November 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Discrimination, Disability & Sexual Harassment, Health & Safety, Personal Injury
• Law Firm: Lee Hishammuddin Allen & Gledhill
• Author: Nurul Aisyah Hassan and Shariffullah Majeed

Only last year, it was reported that 51% of Malaysia's workforce experienced work-related stress¹. Mental health is a crucial topic to be discussed, as it is paramount for employers to both acknowledge and prioritise the well-being of their employees, which would, in turn, boost their productivity. The WHO estimates that poor workplace mental health costs the global economy USD1 trillion annually. In Malaysia, poor mental health in the workplace costs the country's economy around RM14.46 billion, or 1 percent of the GDP².

The Occupational Health and Safety Act 1994 ("OSHA 1994") imposes a statutory duty on employers to ensure, so far as is practicable, the safety, health, and welfare of all their employees. It can be argued that an employer's duty to provide safe and healthy working environment³ is not confined to physical safety structures of the working environment alone, but also extends to mental health of employees, for example, addressing issues of bullying and sexual harassment.

It is also pertinent to note that there is an implied term of a contract of employment that an employer would not conduct itself in a manner which is calculated to damage the trust and confidence between the employer and employee. Thus, an employer may be held liable for breach of contract for failing to adequately manage such issues at the workplace.

Claims of Psychiatric Injury

Apart from claims of breach of contract, some jurisdictions outside of Malaysia have recognised claims for work stress and cases of bullying arising from the negligence of the employers. Earlier this year, a major manufacturing company was made to pay compensation of 2 million Swiss francs to its former employee after the court found that she was bullied at work, suffered psychological damage, and eventually forced out after she had reported safety failures by the company.

Actions for psychiatric injury have received serious consideration in cases involving professionals across the board, in private sectors and in governmental bodies. In other jurisdictions such as England and Australia, employees who suffer psychiatric injury as a result of being stressed at work or being bullied can claim damages in civil claim against their employers.

The first consideration in any negligence claim is whether the claimant was owed a duty of care by the defendant. As highlighted above, employers in Malaysia do have a duty of care under the law to provide a safe and healthy working environment to its employees...