Mental Health at the Workplace

India's mental health landscape has tremendously evolved in recent years, presenting a progressive approach towards mental health. The Mental Healthcare Act, 2017 (“MHA”) was enacted by the Parliament to provide a rights-based framework for persons with mental illness, in pursuance of India’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). While the MHA is a transformative leap from the Mental Health Act, 1987, a myriad of challenges pertaining to mental health in the employment sector remain unaddressed.

Ensuring confidentiality for employees with mental health concerns, understanding the nuances of terminating employees in such situations and fulfilling responsibilities in accordance with the legislation are certain critical aspects that employers must be cognizant of to create a cohesive and an equitable work environment. This article delves into the complexities of mental health at the workplace and aims to address questions pertaining to the rights of employees and employers’ duties.

Employees' Right to Confidentiality

The mental health of a person is ever present and may be positive or negative. A negative mental state of a person could be the result of a mental health issue or mental disorder or mental illness. The MHA defines mental illness as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;[1]” and provides for the rights and safeguards for persons with mental illness. Mental illness must be determined in accordance with MHA as per the nationally or internationally accepted standards including the latest edition of the World Health Organisation’s International Classification of Diseases[2].

A person with mental illness has a right to confidentiality in respect of their mental health, mental healthcare, treatment and physical healthcare and the MHA binds all health professionals providing care or treatment to a person with mental illness, with a duty to keep all such information confidential which has been obtained during care or treatment. However, MHA creates a carve out to allow health professionals to disclose such information only in certain situations as laid out in the MHA.

While the right to confidentiality under MHA extends to persons with mental illness as defined under the MHA, it may be the case that an employee with mental health concerns may not be mentally ill or may not have been diagnosed in accordance with the provisions of MHA or that the employer/co- workers may not be aware of such employee’s condition. In such a scenario, it is essential to understand if co-workers and employers are bound by a duty of confidentiality. The Apex Court’s decision in Justice K.S. Puttaswamy and Ors. Vs. Union of India (UOI) and Ors.[3], plays a significant role in determining the confidentiality rights of employees and the obligations of employers. In this case, the Apex Court held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedom guaranteed by Part III of the Constitution.

Further, In Kaushal Kishore vs State of Uttar Pradesh & Ors`[4]., the Apex Court held that fundamental rights under Article 21 of the Constitution of India can be enforced even against persons other than the State or its instrumentalities.

In light of the judicial pronouncements, it can be concluded that in the event an employer or a co-worker gains knowledge of an employee’s mental health, such person shall be bound by the duty of confidentiality and the disclosure of information by an employer about the employee’s mental health to any person would amount to a breach of privacy as envisaged under Article 21 of the Constitution. Additionally, companies hiring mental health professionals for employee well-being must ensure that the confidentiality of their employees’ information is maintained by such health professionals, in accordance with the applicable laws.

Termination of Employees:

The knowledge of an employee’s mental health may lead to employers questioning the efficiency and performance of such employee at the first instance and may consider terminating such an employee. While there is no statute which expressly prohibits the termination of employees on the grounds of their mental health, however, employers must recognize that an employee may be experiencing mental health issues or could be managing a mental illness and therefore, must be cautious before terminating employees due to their mental health concerns.

In case an employee is determined to be “mentally ill” under MHA, such employee may be categorised as a person with disability under the Rights of Persons with Disabilities Act, 2016 (“RPwDA”). The RPwDA defines a person with disability as a person with long term physical, mental, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. Therefore, an employee suffering from mental illness or mental health disorder may be categorised as an employee with disability as long as such person fulfils the defining criteria under the MHA and RPwDA.

In Ravinder Kumar Dhariwal and Ors. Vs. The Union of India[5], while dealing with the matter of disciplinary proceedings against a CRPF employee who acquired mental illness during the course of employment, the Apex Court held that the disciplinary proceedings were discriminatory and violative of the RPwDA. In addition to the analysis of the provisions of MHA and RPwDA, the Apex Court emphasized that all employers must be cognizant of the role mental health disorders play in cases of alleged misconduct and consider it a mitigating factor even if the mental health disorder is not incapacitating.

In light of the aforementioned, it can be stated that initiation of misconduct proceedings/disciplinary proceedings against employees with mental health concerns, for terminating such employees is a facet of indirect discrimination. Employers must be sensitive to how an employee’s individual capabilities can be accommodated and a blanket approach to disability related conduct may not suffice in courts to show that the employer has discharged its individualized duty to accommodate the employee prior to termination. The employer must take an employee’s individual differences and capabilities into account. While mental health disorders/mental illness may diminish the control an employee has over their actions, it does not necessitate that such employee has completely lost the ability to comply with acceptable standards of workplace conduct.

Duties towards Employees

The MHA provides for the rights of persons with mental illness without assigning any specific obligations on employers in case they gain knowledge of an employee’s mental health conditions. In addition to the MHA, the National Mental Health Policy of India, 2014 and the National Suicide Prevention Strategy, 2022 are strategic directives and recommendations for the stakeholders to implement sufficient measures for promotion of mental health and prevention of mental illness. However, the duties of employers in India or any binding directions have not been provided for in any statute, guideline or policy.

The duties of employers towards employees with mental health concerns may be derived from the MHA as well as the RPwDA. However, it could be that an employee with mental health concerns or mental health issues has not been determined to be mentally ill in accordance with the said legislation. Despite the existence of inclusive laws like the MHA and the RPwDA and progressive judgements of the courts, there are numerous grey areas pertaining to mental health in the employment landscape, specifically in the private sector.

In the absence of laws and guidelines specific to employers or the private sector, employers must take a holistic and systematic approach to manage cases of mental health concerns at the workplace effectively. Employers must ensure confidentiality and privacy of their employees’ mental health concerns by introducing internal policies such as mental health policies, policies for non-discrimination, non-disclosure, and equal opportunity, not just in line with the legal obligations under the MHA and RPwDA, but as best practices.  

Concluding Note   

India is set to welcome the new labour codes as one of the biggest labour reforms, expected to bring in sweeping changes in the employment sector. However, the new codes lack clarity on mental health at the workplace as the primary focus remains on physical safety and welfare. Specific provisions directly addressing mental health at the workplace such as guidelines for managing workplace stress, mental health awareness programs or protocols for tackling mental health concerns have not been outlined in new codes, which redirects us to the existing directives, legislation, global best practices, and guidelines from international bodies. It is essential to keep in mind that employers must not rely on myths or stereotypes in relation to mental health and terminate employees with mental health concerns or mental illness/disability arbitrarily.

Appropriate measures must be implemented, wherever required, to enable employees with mental health concerns or mental illness/disability to have access to, participate in, or advance in employment, or to undergo training.  Additionally, employers may provide for coverage of mental illness/disorders in the insurance policies for employees and further hire an on-premises counsellor/psychologist or a mental health practitioner with adequate qualifications to assess the mental condition of employees, address their mental health concerns, facilitate the promotion of mental health at the workplace and conduct workshops and sessions sensitizing mental health issues. Given that mental health has become increasingly important in the post-COVID era, employers must exercise caution while adopting or engaging in any practices that may have a detrimental effect.

[1] Section 2 (s) of the Mental Healthcare Act, 2017

[2] https://www.who.int/standards/classifications/classification-of-diseases

[3] (2017) 10 SCC 1

[4] (2023) 4 SCC 1

[5] (2023) 2 SCC 209