Employee mental health has become a critical concern in workplaces globally, and Japan is no exception. Japanese labor law places significant emphasis on the employer's responsibility to safeguard the well-being of its workforce, extending beyond physical safety to encompass mental health. This responsibility is primarily grounded in the concept of Anzen Hairyo Gimu (安全配慮義務), the "Duty of Care for Safety," codified in Article 5 of the Labor Contract Act.

Failure to fulfill this duty can expose employers to substantial legal risks, including liability for damages and the invalidation of disciplinary actions or dismissals. Understanding the scope of this duty, the required preventative measures, and the consequences of breach is essential for companies operating in Japan. A notable Tokyo High Court decision from September 22, 2022, provides valuable insights into how these principles are applied, particularly when dealing with employees suffering from work-related mental health conditions.

The Employer's Duty of Care (Anzen Hairyo Gimu) Explained

Article 5 of the Labor Contract Act states: "An employer shall, in accordance with a labor contract, pay necessary consideration for its employee to be able to work by ensuring his/her life and body safety." While seemingly focused on physical safety, Japanese courts have long interpreted this duty, even before its codification in 2008, to include the protection of employees' mental health.

This duty requires employers to create and maintain a working environment where employees are not subjected to conditions likely to cause mental illness. This includes obligations related to:

• Workload Management: Preventing excessive working hours and ensuring workloads are manageable.
• Workplace Environment: Addressing sources of significant workplace stress, including interpersonal conflicts, difficult customer interactions, or inadequate support.
• Harassment Prevention: Implementing measures to prevent various forms of workplace harassment, including power harassment (pawahara パワハラ), which is now specifically regulated under Japanese law (requiring employers to take preventative measures since June 2020 for large companies, April 2022 for SMEs).
• Responding to Distress: Taking appropriate action when an employer becomes aware, or reasonably should be aware, of an employee exhibiting signs of mental distress.

Statutory requirements like mandatory workplace stress checks for businesses over a certain size also supplement this general duty of care.

Recognizing Risks and the Duty to Take Preventative Action

The employer's duty of care is not a duty to guarantee perfect mental health but rather a duty to take reasonable steps based on foreseeability (yoken kanōsei 予見可能性). The duty to act is generally triggered when an employer knows, or objectively should have known, about circumstances that could pose a risk to an employee's mental health.

Factors that can establish foreseeability include:

• Employee Complaints: Direct reports from the employee regarding excessive workload, unmanageable stress, difficult relationships with colleagues or supervisors, or experiences of harassment.
• Observed Changes: Noticeable deterioration in an employee's performance, changes in behavior (e.g., increased errors, withdrawal, emotional outbursts), frequent absences, or visible signs of distress.
• Working Conditions: Objective data showing excessively long working hours, high-pressure targets, or known difficult working environments.
• Medical Information: Information provided by the employee or a physician regarding a mental health condition or susceptibility.
• Stress Check Results: Aggregate analysis indicating high stress levels within a department or individual results suggesting high stress (though access to individual results requires employee consent).

Once a risk is foreseeable, the employer has a positive obligation to take concrete preventative measures (sochi gimu 措置義務). The specific measures required depend on the circumstances but may include:

• Conducting interviews with the employee to understand the situation.
• Adjusting workload or responsibilities.
• Facilitating mediation or addressing interpersonal conflicts.
• Implementing measures to prevent further harassment.
• Reassigning the employee to a different team or role.
• Recommending or facilitating access to medical or counseling support.
• Improving communication channels and support structures.

Failure to take appropriate action when risks are foreseeable constitutes negligence and a breach of the duty of care.

Breach of Duty: Causing or Exacerbating Mental Illness

If an employer breaches their duty of care by failing to implement necessary preventative measures, and this failure leads to an employee developing or worsening a mental illness (such as depression, anxiety disorders, or adjustment disorders), the employer can be held legally responsible.

In Japan, employees suffering from work-related mental illness may apply for workers' compensation insurance (rōsai 労災). A rōsai certification determines that the illness arose out of employment (gyōmu-jō 業務上), providing benefits like medical expense coverage and lost wage compensation. While a rōsai certification strongly suggests work factors contributed to the illness, it does not automatically equate to employer liability in a civil lawsuit. Civil liability requires proving the employer's negligence – specifically, the breach of the duty of care (foreseeability of harm and failure to take preventative measures) and a causal link between that breach and the employee's damages. However, a rōsai finding often serves as significant evidence in related civil claims.

Impact on Disciplinary Actions: Lessons from the Tokyo High Court (Sep 22, 2022)

A crucial aspect highlighted by case law is how an employer's breach of the duty of care can impact the validity of subsequent disciplinary actions against the affected employee. The Tokyo High Court decision of September 22, 2022 (Reiwa 2 (Ne) No. 3641, published in Rohan No. 1304, p. 52) provides a compelling example.

Case Background:

• An employee (X) developed a persistent depressive reaction (sen'ensei yokuutsu hannō) certified as work-related under rōsai. Evidence indicated the illness stemmed from the employer's (Y's) failure to adequately address X's repeated complaints about excessive workload and a strained relationship with supervisor A.
• After developing this condition, X engaged in conduct deemed problematic by Y, including refusing certain tasks and sending emails containing harsh criticism of supervisor A.
• Y imposed a disciplinary demotion (chōkai shobun 懲戒処分) with a significant pay cut based on this conduct.

High Court Ruling on Demotion:
The High Court ruled the disciplinary demotion invalid as an abuse of disciplinary power under Article 15 of the Labor Contract Act. The Court's reasoning emphasized the following:

1. Timing of Misconduct: The employee's problematic actions occurred after the onset of the work-related mental illness.
2. Employer's Causal Role: The illness itself was attributed, at least in part, to the employer's prior failure to fulfill its duty of care regarding workload and management issues.
3. Employer's Awareness: The Court found that the employer knew, or at least should have known (ninshiki shiuru jōkyō ni atta 認識し得る状況にあった), about the employee's mental distress and its likely work-related causes before imposing the disciplinary measure. The employee had repeatedly voiced concerns and shown signs of distress.
4. Reduced Culpability and Proportionality: Given these circumstances, the Court considered the disciplinary demotion disproportionately severe. The employee's actions, occurring while suffering from a work-induced mental illness for which the employer bore some responsibility, were viewed with diminished culpability (kiseki sei 帰責性). Imposing significant discipline in this context was deemed unreasonable and lacking social acceptability (shakai tsūnen-jō sōtō de aru to mitomerarenai 社会通念上相当であると認められない).

This ruling aligns with principles established in earlier cases, such as the Supreme Court decision in the Japan Hewlett-Packard case (April 27, 2012), which suggested that when an employee's absence or problematic behavior stems from apparent mental distress, the employer's response should prioritize support and understanding (like investigating the cause, recommending treatment, or considering leave) rather than immediately resorting to punitive disciplinary measures. Punishing conduct that may be a symptom of an illness, especially one linked to the employer's own failings, undermines the purpose of the duty of care.

Wrongful Personnel Actions as a Further Breach of Duty

The September 2022 Tokyo High Court decision went further. It found that the employer's breach of duty was not limited to the initial failure to prevent the illness. The subsequent personnel actions taken against the employee – specifically, the invalid disciplinary demotion and a later, groundless notice of dismissal – were themselves considered further breaches of the Anzen Hairyo Gimu.

The Court reasoned that these adverse actions, being legally unjustified and imposed on an employee known to be suffering from a work-related mental condition, foreseeably exacerbated the employee's mental state. This highlights a critical point: an employer's duty of care continues even after an employee develops a mental health issue. Taking legally flawed or unduly harsh personnel actions against such an employee can independently constitute a breach of duty by causing further harm to their mental well-being.

Consequences of Breaching the Duty of Care

Employers who breach their duty of care regarding employee mental health face several significant consequences:

1. Liability for Damages (Songai Baishō 損害賠償): The employer can be sued for damages resulting from the breach. This typically includes:
   • Medical expenses (potentially exceeding rōsai coverage).
   • Lost wages (past and future, again potentially beyond rōsai).
   • Consolation money (isharyō 慰謝料) for the employee's mental suffering, the amount of which depends on the severity of the breach, the illness, and its impact.
2. Invalidation of Personnel Actions: As seen in the Tokyo High Court case, disciplinary measures (warnings, demotions, suspensions, dismissals) or dismissals based on conduct linked to a work-related mental illness, or actions taken in breach of the duty of care, may be deemed null and void by courts. This can lead to reinstatement orders and back pay liability.
3. Reputational Damage: Legal disputes concerning employee mental health can significantly harm a company's reputation as an employer, potentially affecting recruitment, retention, and overall morale.
4. Regulatory Scrutiny: Depending on the circumstances (e.g., findings of illegal harassment), companies may face administrative guidance or orders from labor authorities.

Practical Recommendations for Employers in Japan

To mitigate legal risks and foster a healthier workplace, employers operating in Japan should consider the following:

• Implement Clear Policies: Develop and communicate comprehensive policies regarding workplace stress management, harassment prevention, and support for employees experiencing mental health difficulties.
• Train Managers: Equip managers and supervisors to recognize early signs of mental distress, handle sensitive conversations appropriately, understand their duty of care obligations, and know when to escalate issues or seek HR/expert advice.
• Encourage Reporting and Respond Promptly: Create safe channels for employees to report concerns about workload, stress, or harassment. Take all complaints seriously, investigate them promptly and fairly, and implement corrective actions where needed.
• Utilize Stress Checks: Comply with mandatory stress check requirements and use aggregate data (while respecting individual privacy) to identify high-risk departments or job roles requiring intervention.
• Consult Experts: Engage occupational health physicians, counselors, or external Employee Assistance Programs (EAPs) to provide support and guidance for managing employee mental health issues.
• Exercise Caution with Personnel Actions: Before taking disciplinary action or considering dismissal for an employee exhibiting signs of mental distress or known to have a condition:
  • Thoroughly investigate the situation, considering potential links between the conduct/performance issues and the mental health condition.
  • Ensure any action is based on solid, objective grounds and complies strictly with legal requirements (e.g., disciplinary procedures, dismissal rules).
  • Consider less severe, supportive measures first (e.g., adjustments, leave, treatment recommendations).
  • Carefully assess the potential impact of the action on the employee's health.
  • Document the entire process meticulously.

Conclusion

The employer's duty of care for employee mental health under Japanese law is a significant and evolving obligation. It requires a proactive approach to identifying risks, implementing preventative measures, and responding supportively when employees experience difficulties. As highlighted by the Tokyo High Court's 2022 decision, failing in this duty can lead not only to liability for causing or worsening an employee's condition but can also invalidate related disciplinary actions or dismissals. For businesses operating in Japan, prioritizing employee mental well-being is not just an ethical imperative but a critical component of legal compliance and risk management.