With Mind reporting that one in six people are suffering from mental health issues, it is not surprising employers have been feeling the impact on their organisations. Many employers have been trying to balance the need for optimum operational efficiency with providing support to individuals in need. If the individual has a disability, there is also the added layer of the Equality Act 2010 to get to grips with, which sets out the legal obligations that may also need to be addressed.
Can a mental health issue be a disability?
Although some employers may not recognise that a mental health condition is a disability, the Equality Act 2010 covers mental health conditions.
The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long-term negative impact on an individual’s normal day-to-day activities.
If it can be demonstrated that the mental impairment satisfies the definition of disability, the employer is faced with a whole raft of legal issues. Less favourable treatment or unjustified requirements that place the protected individual at a disadvantage because they have a disability or due to a reason arising from a disability are unlawful. While these principles run in line with all other types of discrimination such as sex or race, there is another legal obligation under the umbrella of disability discrimination, which employers often find hard to grapple with.
What is this additional legal obligation?
Employers have an obligation to make reasonable adjustment when the employer knew or could reasonably be expected to know that someone is disabled. Reasonable adjustments are changes that can be made to remove or reduce a disadvantage related to an individual’s disability. The change could be an adjustment to the work environment or the individual’s duties; it could also involve providing extra support or a piece of equipment.
Why is it difficult for employers?
When it comes to the issues of making reasonable adjustments, until now, employers have been faced with a problem; there is no legal definition of “reasonable adjustment”. As there are no rules to follow, an employer is left to work out what is a reasonable adjustment in each case.
Getting it wrong can have significant repercussions – an individual may be disadvantaged unintentionally and ultimately, costly legal proceedings may follow.
How will things be made easier when supporting mental health in the workplace?
The Advisory, Conciliation and Arbitration Service (“Acas”) has published a guide specifically to address the issue of reasonable adjustments for those people that are suffering from mental ill health.
The guidance is detailed, explaining what the current law says, the benefits of making reasonable adjustments, examples of adjustments that might be reasonable, the process to be followed in relation to requesting and responding to requests for reasonable adjustments and how to manage and monitor adjustments. There is also a section relating to reviewing mental health related policies.
Some issues to watch out for when dealing with reasonable adjustments
The Acas guide brings the issue of reasonable adjustments to the forefront of good HR practice and legal compliance. This means individuals will be aware of their rights and in particular;
Acas consider that employers should try to make reasonable adjustments even if the health issue is not a disability. In some respects, this is broadening the scope of the obligation and is likely to go to the question of whether any employer has acted fairly when considering dismissing an employee for ill health.
Acas is clear on who the guide applies to. While there are no changes here, it stands as a caution to employers that the duty to make reasonable adjustments applies not only to their current employees and workers but also contractors and the self-employed. Job applicants also get a mention. The individual does not need to have already joined an organisation to have the right to have reasonable adjustments made. Reasonable adjustments will apply equally in the recruitment and selection process.
Acas explains that the obligation to make reasonable adjustments not only applies where employers know that the employee has a disability but also where they could reasonable be expected to know someone is disabled. If there are warning signs, an employer is expected to find out more. Long term sickness absence, persistent periods of short-term absence and poor performance may be indicators that there is an issue. Likewise, there may be information contained in the answers to a health questionnaire that warrants further scrutiny.
Although the guide does not have legal force, the employment tribunal are likely to refer to it when assessing if an employer has satisfied its obligations to make adjustments and acted reasonably. The guide should not be ignored.
What next for employers?
The Acas guide provides a framework to enable employers to manage conversations about reasonable adjustments in a legally compliant and sensitive way.
Employers now have more clarity on what is expected of them when the issue of reasonable adjustments needs to be considered. From a legal risk management perspective, the guide is a useful resource for employers to benchmark their current approach to supporting mental health and making reasonable adjustments in the workplace to identify any gaps that need addressing.
While the guide provides more certainty and may make the management of some cases easier, there will always be cases where it will not provide a risk free solution. In more complex cases, the guide should be used in conjunction with relevant legal, medical and occupational health advice, which also play a key role in assisting an employer to make the right decisions.