Mental health and reasonable adjustments: what employers need to know
Supporting employees mental health in the workplace is important. There are many benefits for the employer in doing so. These include improved retention, attendance and productivity.
Underpinning this, is a legal duty to make reasonable adjustments. This duty applies where the employee’s mental health condition is a disability, under the Equality Act 2010.
“Mental health problems should be taken as seriously as physical conditions. Reasonable adjustments may be required, notwithstanding that the individual does not consider themselves to be disabled,” explains Sam Welham, an Associate Solicitor in the Employment Team at Barker Gotelee.
Managers may have concerns about privacy, or not feel equipped to deal with mental health issues in the workplace. To help, Acas have published guidance on reasonable adjustments for mental health, which provides practical advice on the topic.
Sam Welham highlights below employers’ legal responsibilities, gives examples of reasonable adjustments for mental health, and offers tips for employers.
What are employers’ legal responsibilities?
If the impact of an employee’s mental health meets the definition of disability, the employer has a duty to make reasonable adjustments.
There is no obligation on the individual to disclose that they may have a disability. However, the employer is expected to make reasonable adjustments if they know, or reasonably should have known, about a disability. This means employers should be alert for signs that the employee has a disability. It is no defence for the employer to bury their head in the sand, and then claim they did not know about a disability.
Employers also have other legal responsibilities for their workforce’s mental health, under health and safety law (including the Health and Safety at Work etc Act 1974, and the Management of Health and Safety at Work Regulations 1999), and their common law duty of care.
Understanding the Equality Act – the definition of disability
The key question is whether the employee meets the definition of disability under the Equality Act 2010. This is a different test, to the test used to assess an individual for some state benefits.
To come within the definition of disability under the Equality Act, the following criteria must be met:
- the employee must have a mental or physical impairment.
- the impairment must affect the employee’s ability to carry out normal day-to-day activities. These day-to-day activities are defined as things people do on a regular or daily basis, and include: shopping, reading, writing, having a conversation by telephone, getting washed and dressed.
- the adverse effect is substantial. An effect is considered ‘substantial’, if it is more than minor or trivial.
- the adverse effect is long term. To be long term, the impairment must have lasted 12 months, or be likely to last at least 12 months.
When considering the effect of the impairment, any medication or treatment (such as therapy) must be disregarded. There is a Code of Practice produced by the Equality and Human Rights Commission and case law on all aspects of the definition. Specialist advice is required in each particular case.
Reasonable adjustments for mental health
The duty to make reasonable adjustments can apply to all aspects of the working relationship: from the way the recruitment process is run, through to considering mitigating factors in a decision to dismiss. Reasonable adjustments should accommodate an individual’s disability, to keep them in work, or get them back to work.
When considering what assists, employers should consider the individual employee, and that their mental health can fluctuate over time.
We recommend consulting the employee about adjustments. But, employers should not rely solely upon the employee’s suggestions. It may be advisable to obtain independent medical advice from an occupational health professional.
The employer is only required to take steps that are reasonable. We can help you to work out what is reasonable. Factors to consider include:
- the likelihood that the adjustment will be effective;
- the extent to which the adjustment is practical;
- cost, as appropriate, weighed against the cost of recruiting and training a new employee;
- impact on colleagues and the business;
- resources available to the business and the size and type of business; and
- the feasibility of the proposed adjustment.
Examples of reasonable adjustments for mental health
Potential reasonable adjustments might include:
- reallocating duties that the individual finds stressful;
- paid time off, to attend medical appointments, or therapy;
- providing a quiet space for someone experiencing anxiety;
- working from home during periods, when experiencing agoraphobia;
- allowing a higher rate of disability-related absence, before triggering steps under the absence management procedure;
- making some allowance for disability-related behaviours, or reduced performance;
- mentoring, training and enhanced support from a supervisor; and
- phased returns with carefully managed workload following a return to work after disability-related absence.
Tips for Employers
Managers may feel daunted by addressing reasonable adjustments. We can help you manage employees supportively and sensitively, and help you prepare for meetings. Our general tips for employers include:
- have an open culture, where individuals feel able to talk to managers about their mental health, and managers feel confident having these conversations;
- support managers to foster this culture. This can be done by helping managers find out more about the employee’s condition, while keeping an open mind about the individual’s personal experience;
- agree with the employee what information they are happy to share with colleagues, where this is necessary to implement reasonable adjustments. Any health-related information should be treated as highly confidential;
- for individuals who work with different teams or parts of the business, record adjustments in a ‘passport’, to be shared with other managers (with the individual’s agreement). This ensures adjustments are provided to the employee across the business;
- use trial periods and review regularly to assess the impact of any adjustments. This is important to get the adjustments right, and ensure they remain beneficial; and
- agree with the individual and write down the plan for adjustments, timescales and the review date, and then ensure this is implemented.
How we can help
We can support you to create an inclusive and supportive workplace, for individuals with mental health problems. This includes: advice on identifying disabilities and appropriate reasonable adjustments; help preparing meeting plans, correspondence and recording the plan for adjustments; preparing a policy on reasonable adjustments; and reviewing your policies to ensure consideration about reasonable adjustments are built in and highlighted.
For further information, please contact Sam Welham in the Employment Team on 01473 617 348 or email [email protected]. Our employment solicitors are here to help.
The article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
