In this article, Minal Backhouse, MD and Head of Employment Law at Backhouse Solicitors, looks at Mental Health Disability and how employers should deal with affected employees
The Equality Act 2010 makes employers responsible for promoting a fair and equal workplace. This means that they cannot discriminate against current or prospective employees because of a disability.
Defining Mental Health Disability
Disability under the Equality Act has a specific legal meaning that is different to the common usage. The Act provides that if an employee has a physical or mental impairment that has a substantial, adverse and long-term effect on their ability to carry out normal day-to-day activities, they will be recognised as disabled under the Act.
Whilst this definition might appear to be cast relatively wide, when considering mental health disability the focus is on the effect of any mental health problems. For example, when considering if anxiety is a disability it will need to be decided whether the mental impairment:
- Has more than a small effect on day-to-day activities; and
- Whether it has lasted or is likely to last at least twelve months
This would be assessed on a case by case basis by an Employment Tribunal, but it is by no means as clear cut as it may seem. In a recent case, a Tribunal decided that an employee was not disabled because their depression (caused by work-related stress) had not lasted for a full twelve months. This was appealed and the Employment Appeal Tribunal overturned the decision on the basis that it was wrong to assume that the depression would stop if the employee was dismissed from his job. The Tribunal should, in fact, have considered whether the impairment might recur in the future and was therefore likely to last twelve months in total.
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments for employees with disabilities. Reasonable adjustments require employers to evaluate and adjust the workplace so that their disabled employees can reasonably remain at work or return to work if they have been off. In doing this, employers must also consider if there is a provision, criterion or practice (PCP) which places a disabled person at a substantial disadvantage to those who are not disabled and make appropriate changes. They must also consider whether a physical feature causes a substantial disadvantage, or if an auxiliary aid should be provided.
A failure to make reasonable adjustments is prohibited conduct under the Equality Act and could lead to an employee bringing a discrimination claim at the Employment Tribunal. This is serious for employers because discrimination claims don’t require a minimum length of service and awards are not capped.
The assessment process is likely to be more difficult for a mental health disability than a physical disability because mental impairments are often invisible to an outsider. Employees may also find it difficult to verbalise their condition or associated needs given the perceived stigma that often attaches itself to mental illness.
Reasonable adjustments for someone with a mental health condition could include:
- Making adjustments to premises such as reducing noise levels
- Allocating some of the disabled person’s duties to another person
- Assigning a disabled person to a different place of work or allowing them to work from home
- Altering a disabled person’s hours of working or training
This is not an exhaustive list and the specific factors will vary from workplace to workplace.
Employers are only expected to make adjustments that are reasonably practicable, and this will need to be assessed on a case by case basis. Employers are allowed to take account of the financial implications on the business and to what extent the adjustments may affect other employees and the operation of the business. Employers can sometimes get Government funding to assist with making reasonable adjustments under the Access to Work scheme and Tech Fund and this should be taken into account before rejecting reasonable adjustments on cost grounds.
As an employer, how can you ensure that you have made the appropriate reasonable adjustments for a disability that you may not be fully aware of? Unfortunately, there is no simple answer. Whilst it is clear that you will always have a duty when your employee tells you directly about their disability, this duty also extends to “constructive knowledge”. That is when you “ought” reasonably to have known, or to have made proper enquiries to find out.
Case law on this subject has focused on whether employers have taken reasonable steps to ascertain if an employee has a disability. Good practice starts with having an Equal Opportunities and Non-Discrimination Policy and encouraging an open and honest dialogue in the workplace. Collecting and monitoring diversity data can also help, encouraging good communication but also encouraging a good mix of people and skills in your teams.
Tribunals have made it clear that where an employee conceals their disability on an ongoing basis, you as an employer don’t have an obligation to make reasonable adjustments to accommodate for something of which you aren’t aware. You are not expected to make repeated enquiries and keep jumping through administrative hoops to no benefit.
Mental health disabilities are becoming increasingly common in the workplace and the law is clear that employers must try their best to help affected employees carry out their jobs effectively. Appropriate policies and a supportive culture are a strong starting point, but there isn’t a one size fits all solution that will work for every scenario. Given the potential penalties for getting it wrong we would always recommend seeking professional advice if an employee comes to you for help or you suspect there is a problem. This will give you and your business the best chance of finding a solution that works for everyone involved.
MD and Head of Employment Law
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