BEING able to take part in gainful work is important to an individual’s mental health, given that employment provides a platform for independence and dignity.

Yet for people who suffer from depression, anxiety and other common mental illnesses, such opportunities are often curtailed due to a lack of sympathy and understanding from employers. This struggle with employment-related discrimination is common worldwide, and Malaysia is no exception.

In 2015, a local study on stigma and discrimination of mental illness revealed that a majority of people with mental health difficulties faced higher levels of employer discrimination. In that study, over half of mental health professionals interviewed shared that their patients faced discrimination from their employers, both in hiring and retaining practices.

“Employers think you are a risk. It’s a challenge for my patients to disclose his or her condition especially during [job] interviews. There’s one case where my patient told the potential employer about his condition at the final stage of the interview and they withdrew his offer.” – Government psychiatrist 1.

“One patient told me that he took sick leave because he was depressed. Then, when he came back, he was told that he (had been) fired.” – Government psychiatrist 2.
 

Employment discrimination against the mentally unwell is also evidenced in government reports. For example, the MOH Strategic Plan for Health Care 2016-2010 report found that in 2015, 90% of patients with a mental health condition failed to find employment, even after undergoing the government’s Individual Placement & Support-Supported Employment (IPS-SE) scheme.

These dismal figures were projected to improve only marginally (up less than half of total mental health patients) by the end of 2017.

Is discrimination legalised?

Although the Federal Constitution specifically prohibits discrimination on the grounds of religion, race, descent, place of birth and gender, persons with disabilities (which include mental health conditions) appear to have been overlooked.

One might look to the Persons with Disabilities Act 2008 (Act 685) which defines persons with disabilities as those ‘who have long term physical, mental, intellectual or sensory impairment which… may hinder their full and effective participation in society as a potential recourse. But even here, the spirit of the law seems to stem from charitable benevolence rather than an inherent rights-based approach. 

For example, Act 685 does not provide any specific enforcement clause for anti-employment discrimination. Section 29, which deals with access to employment, merely ‘appeals’ to employers, “in performing their social obligation”, to accord disabled fair and equal treatment. Furthermore, there are no stipulated penalties for failing to adhere.  

Likewise, there is very little coverage for mentally unwell employees in the Employment Act 1955 (EA 1955), which tends to favour employer rather than the employee.

For instance, the Act does not require employers to provide reasonable accommodation to people with mental illness during the hiring process.

Furthermore, under Section 10(2), employers are entitled to lay down the conditions for dismissal in the working contract. If these include cases where an employee’s performance is shown to be curtailed by having a mental illness, the employer may fire within a stipulated length of notice (usually four to eight weeks, depending on how long service was rendered).

In certain cases, it may even be legal for the employer to dismiss an employee without prior notice if, after due inquiry, the employer finds that the employee is unable to fulfil expectations of service in line with the writ of contract.

Policy recommendations

Employers who discriminate based on mental health conditions may not be breaking the law, but from a human rights perspective, their actions are non-progressive.

In the long run, discrimination can lead to fatal outcomes. Research has found that the mental health of the unemployed deteriorates the longer they go without finding work, what more for those already living with a mental health condition.

What can be done to ensure that job seekers and employees with a mental health condition are accorded fair treatment?

Unfortunately, it is difficult to apply laws that protect against hiring discrimination since job applicants rarely have proof that they were discriminated against. Standard rejections usually involve applicants being informed that they do not meet requirements, or that another applicant had better qualifications.

One way to overcome this could be to revise the Employment Act to include provisions that require employers who turn down job seekers with a mental illness record, to provide clear justification for the reasons for their rejection.

The Act should also require employers to offer alternatives before firing an employee diagnosed with depression or anxiety. This includes making efforts to support their needs, such as allowing time off (within reasonable limits), to attend treatment for their condition. While the length of treatment will depend on whether the mental illness is acute or chronic, these conditions are treatable with professional help.   

Last but not least, tackling prejudicial attitudes requires a more prominent discussion of mental health rights in the workplace and wider society. The pervasive stigma surrounding mental health can be shifted, if all are committed to creating a more accepting, open-minded culture in which the mentally ill are treated with dignity and respect.

In this sense, positive attitudes should be encouraged, not only from employers, but the entire workplace and wider community. – October 22, 2017.

* Lim Su Lin is a Policy Analyst with Penang Institute in Kuala Lumpur. She graduated in 2013 with a degree in History from Cambridge University. Her research interests lie primarily in psychosocial health and wellbeing. She explores these in the context of making recommendations to improve social and development policies. The long-term goals of her work are to advocate for more equitable outcomes and reduced inequalities in society.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.