Mental health can greatly affect a person’s job performance. About one in four individuals experience mental health problems at some point in their lives, so it’s crucial for employers to understand how to support their staff effectively. Recently, Acas and Affinity Health at Work collaborated to publish non-statutory guidance on making reasonable adjustments for mental health in the workplace. This guidance covers what reasonable adjustments are, provides examples of such adjustments, and highlights the benefits of implementing them. It also offers simple instructions for employees to request these adjustments and for employers to respond to those requests, including template letters. The guidance further recommends good practices for discussing mental health adjustments in the workplace and reviewing policies and procedures with these adjustments in mind.
It’s important to note that Section 20 of the EqA 2010 (Equality Act 2010) places a duty on employers to make reasonable adjustments to ensure that employees with disabilities, including mental health disabilities, are not disadvantaged at work. Determining the reasonableness of an adjustment involves considering factors such as cost, practicality, and effectiveness. To make a claim for failure to comply with the duty to make reasonable adjustments, the individual must demonstrate the following:
The individual is a disabled person, meaning they have a physical or mental impairment that substantially and adversely affects their ability to carry out everyday activities for at least 12 months.
The employer knows or should know about the individual’s disability, either through disclosure or evident behaviour or circumstances.
The individual is significantly disadvantaged compared to non-disabled individuals due to a provision, criterion, or practice (PCP) related to employment, training, facilities, or services.
There is a reasonable adjustment that the employer could have made to remove or reduce the disadvantage, and it must be reasonable in the given circumstances.
The employer failed to make a reasonable adjustment or the adjustment made was ineffective in addressing the disadvantage.
Typically, claims for failure to make reasonable adjustments are accompanied by claims of indirect disability discrimination due to the overlap in legal drafting. The burden of proof shifts to the employer once the individual establishes a prima facie case of discrimination The employer must then demonstrate either that they made the required reasonable adjustments or that the adjustment was not reasonable in the circumstances.
Now let’s look at some examples of reasonable adjustments:
Flexible working arrangements: This can include adjustments to working hours, such as part-time work, flexible hours, or working from home. For instance, in the case of Dunn, the claimant’s request for flexible working due to depression and anxiety was denied, which constituted a failure to make reasonable adjustments. Similarly, in the case of Carreras, Ms Carreras’ request to work from home twice a week due to chronic fatigue syndrome was denied, leading to a failure to make reasonable adjustments.
Changes to the physical work environment: This may involve adjusting lighting, noise levels, temperature controls, or providing a quiet space for the employee to work. In the case of Lamb, the claimant, who had post-traumatic stress disorder (PTSD), requested to teach in a classroom with more natural light and ventilation. The employer‘s failure to consider this request was deemed a failure to make reasonable adjustments. Another example is the case of Preston, where the claimant had primary reading epilepsy and needed permitted breaks away from the computer screen. The employer successfully demonstrated this reasonable adjustment.
Reallocation of duties or relocation: If an individual struggles with certain tasks or responsibilities, employers can assign those duties to another employee or modify job responsibilities to better suit the individual’s abilities. In the case of Brangwyn, the claimant, who had a phobia of blood, injections, and needles, was not required to work in or near hospital wards. However, no PCP was found in this case. In the case of Hurle, Mr Hurle, a fire station manager, requested an urgent transfer to a station closer to his home due to his daughter’s mental health issues and his own depression. The employer’s denial of the transfer and subsequent dismissal amounted to a failure to make reasonable adjustments.
Training and support: Employers can provide training and support to help individuals manage their mental health conditions. This may involve offering access to a counsellor or employee assistance programme, providing mental health awareness training, training mental health first aiders, conducting unconscious bias training, or appointing mental health or disability champions to foster open conversations.
Adjustments to work expectations and pay rates: This could entail reducing workloads, adapting targets, adjusting task deadlines, extending full sick pay, or maintaining existing pay rates when an employee is assigned to another role for a trial period. In the case of Knightley, the employer failed to make a reasonable adjustment by not allowing the claimant additional time to appeal her dismissal.
There are some important considerations to keep in mind:
Identifying the need for adjustments: Employees must communicate their mental health condition to their employer in a clear and identifiable manner for the duty to make reasonable adjustments to apply. It’s crucial to avoid making assumptions or relying on previous experiences or online searches to prevent unconscious bias should be trained on how to handle conversations about adjustments, and occupational health input should be sought early on. Refusing an occupational health referral limits the employer’s knowledge.
Balancing business needs with individual needs: Employers have the right to assess whether adjustments would negatively impact their operations or other employees‘ work. The reasonableness of adjustments should consider the nature of the individual’s mental health condition.
Identifying the PCP: Reasonable adjustments only apply to provisions, criteria, or practices and not all aspects of the employer-employee interaction.
Considering the risk of related claims: A failure to make reasonable adjustments can lead to other legal claims, such as harassment related to disability, breaches of health and safety obligations, whistleblowing detriment, and breaches of mutual trust and confidence.
Data protection and anonymity: Employers should handle employees‘ health information carefully to comply with data protection laws. It’s advisable to allow individuals to guide the disclosure of their disability information. Claimants may seek restricted reporting orders or anonymisation orders to protect their medical information during litigation.
In conclusion, employers have a legal obligation to make reasonable adjustments to support employees with mental health conditions covered by the Equality Act 2010. Failing to do so can result in costly tribunal claims and damage to the employer’s reputation. Even if a mental health condition does not meet the legal definition of a disability, it’s recommended that employers proactively promote mental well-being to improve workplace culture, equality, diversity, and inclusion, as well as employee satisfaction and progression. The recent Acas guidance strongly encourages this approach.
