Dominic Fleeton is a partner at global law firm K&L Gates, and Emma Parsons is a workplace mental health risk consultant. Speaking recently on The Lawyers Weekly Show, the pair discussed how firms can be managing mental health risks in the workplace post-pandemic — and what has changed in the last few years. 

In terms of the state of affairs within this area, Ms Parsons said that after reports looking into how to govern mental health were released in 2018 and 2019, Victoria is leading the way in enforcing new legislation — although it’s a costly process. 

“Victoria have taken the lead; they did their own research and have got some amendments coming out. Just to paint a little bit of a picture of actually what this looks like, is the steps that came out in 2021, an average mental injury claim is $220,000. Now a normal one, you’re probably talking anything between 50,000 to probably about 90,000, and then with the time off work, it’s significant. We’re looking at 15.3 weeks off work, on average, which is, again, versus about five and a half weeks for a normal physical injury. So, it’s quite impactful when you’re looking at, when someone goes off on a WorkCover claim,” she said. 

“You’ve also got the fact that common law claims went up by 7.7 per cent last year, and also you have a 31 per cent increase in serious claims that were for mental health conditions in 2019 and ’20, and WorkSafe have actually do a trend, and they don’t see this slowing down anytime soon in the next five years. So, it’s going to be quite costly.”

And particularly as we start to see some of the longer-term impacts of COVID-19, legislative changes will be necessary, as well as looking at new definitions of what workplace health looks like today. 

“I think that the best way to summarise it is that there is clearly an intent to provide employers with greater detail around what some of their key obligations cover, that in work health and safety legislation, the concept of health has really always included both psychological and physical health. So that’s nothing new, but what we’re seeing in the proposed Victorian regulations, and also some changes that were recently agreed to be made to the model work health and safety regulations, is to include some definitions of key concepts. So, for example, the concept of what is a psychosocial hazard, and that is something that has really often been a concept that was poorly defined,” Mr Fleeton said. 

“We got some clarity on that a couple of years ago when the New South Wales government brought in a Code of Practice, which doesn’t have the status of law, but it is a document that can be admitted in legal proceedings, and the courts have regard to. So, a breach of the Code of Practice isn’t of itself an offence, but an employer needs to be able to show if they’re not following the Code of Practice, they need to demonstrate that they’re dealing with matters at the same or a better standard. 

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“So that New South Wales Code of Practice on managing psychosocial hazards at work, which came out in May 2021, represented a really good exercise in trying to provide a bit more explanation of these concepts, and we’re seeing now in these proposed changes to regulations coming through, that carry through. Which can only be helpful, because from where I sit, and this isn’t just a product of the pandemic, although the pandemic has certainly had and is going to continue to have a real impact on these issues and the prevalence of mental health concerns, but this is something that we were seeing as a bit of a trend before the pandemic,” he added. 

From the perspective of a risk consultant, Ms Parsons explained that psychosocial hazards can be anything that creates work-related stress — from job descriptions and working relationships to bullying, harassment and even micromanaging. 

“Psychologically, if you are micromanaged, it plays havoc. You become very stressed, you become anxious, you don’t want to go to work, you end up taking sick leave. Also, with regards to job demands, we know what the state of play is with employment at the moment. Everyone is looking for people, so the job demands and the expectations that are on people are high, so therefore now the risk has increased,” she said. 

“So, when we’re looking at psychosocials, it is an all-encompassing thing. And the thing that I see a lot of the time is the fact that under the legislation, it sits under health and safety. However, HR seem to think that it’s their bag because it’s wellbeing, and there is so much that is falling through the gaps it is frightening. Because if you walk into any company and say, ‘Okay, can you give me a management system on how you are managing psychosocials?’, they wouldn’t be able to. Physical, absolutely. With mental health, not at all. So, it’s really, really important for people actually to get their heads around.”

And for law firm leaders, in particular, managing a post-pandemic workforce consists of a number of different elements, added Mr Fleeton. 

“In this current environment, what constitutes the workplace has become quite different. And in fact, a lot of people now have multiple workplaces, and those workplaces often include their homes. So, a whole raft of risks arise from that,” he said. 

“So, one of my key messages would be resist the temptation to just jump straight to the solutions, because I think there has been a real difficulty in trying to really understand how broad this concept of psychosocial hazard is, and if you jump straight to the solutions, invariably risks are going to get missed. So really take it back to first principles, map it out, see how it applies in your organisation, and don’t be afraid to ask questions. In different industries, there are very collegiate sort of relationships, there’s often information sharing amongst what different organisations are doing to tackle certain issues. You’ve got avenues like that; you can get advice. And it’ll never be perfect, but it’s got to be more than just assuming that what we’ve been doing to date is sufficient, because in most instances it won’t be.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Dominic Fleeton and Emma Parsons, click below: