13 Sep 2018

CU LAB: R U OK? And if you're not, what should your employer do?

We all hope our colleagues and employees are OK. But if they're not, you need to have a way to assess and assist them.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.


Today I'm talking about the phenomenal initiative that is R U OK Day. It is about to hit us and it's an opportunity to reflect and understand the significance of asking someone if they are OK. 

Mental illness and managing mental health has become an ever-present and significant topic that consumes a great amount of conversation domestically and internationally.  We only have to look at recent events like the passing of Kate Spade and Anthony Bourdain to understand how difficult it can be to detect or understand mental illness. 

When it comes to a workplace the significance of understanding the consequences of managing mental health in the workplace and how you can make a difference while supporting somebody without judgment is an important part of R U OK Day.  Asking somebody if they are OK and supporting somebody who might be having a difficult time is part and parcel of how we would all like to consider we would support somebody in need. Legally and from an employment perspective, however, understanding the consequences of empowering and supporting your people to care for each other is also about understanding the legal risks if they don't appreciate their own conduct and contribution after asking that question.

For example, if somebody asks R U OK?, are they ready to understand how to best support somebody who answers it?  If the answer is "yes, fine thanks", but their conduct and behaviour would suggest otherwise, understanding how to respectfully and appropriately support a colleague but also ensure that an employer is able to take steps to care and respond to individual circumstances is important. 

If they are not OK but it is in response to a disciplinary process or a performance management discussion, an employer's response may be to pause and ask for information and make a judgment about how to reasonably proceed or whether or not the matter may need to be stood down until you can properly address the employee's capacity to continue in that discussion. 

These matters don’t necessarily need to become part of a conversation in a workplace but if they do how they are managed and how they can evolve into other discussions will depend upon individual circumstances.  A person can be just having a bad day.  Mental illness and mental health needs to be understood.  A person who has mental illness can have very good mental health and understand and have coping strategies to help manage their personal condition, however it is fundamental to an employer's responsibility to listen without judgment, which is part of accepting and ensuring that you are able to support a disclosure in the workplace.