The Equality Act protects employees with a qualifying disability from discrimination at work. This duty relates not only to physical health, but also to the mental health and wellbeing of employees.
In particular, section 20 of the Act gives the right for eligible employees to request reasonable adjustments be made by their employer to allow them to apply for or carry out their job without being at a disadvantage. This could involve changing or adapting the employee’s work environment or arrangement in such a way as to remove or minimise the impact of the employee’s disability.
The duty applies to making adjustments for new employees with a disability, as well as to employees who have become disabled during the course of their employment.
Failure by an employer to make such reasonable adjustments can give rise to a tribunal claim for disability discrimination.
What are reasonable adjustments?
What constitutes a ‘reasonable adjustment’ will turn on the facts of the specific request, taking factors such as proportionality of the employee’s proposed changes into account.
Adjustments could include:
- Agreeing to a flexible working arrangement, such as a reduction in the employee’s working hours or changing their start/finish time
- Re-assigning the employee to suitable, alternative duties
- Supporting a phased return to work if the employee has been absent due to their condition
- Altering the employee’s workspace, e.g. providing a specialist chair, moving a desk to better suit their needs or working from home, if possible
When assessing a request to make reasonable adjustments, the employer should consider:
- Whether the adjustment overcomes the disability
- Any financial or other costs related to the adjustment, including money already spent
- The practicalities of making the adjustment
- Calculating any disruption that may be caused by implementing the adjustment
- Availability of other assistance
In general, the larger the employer and the more resources it has at its disposal, the more that would be expected from the employer in meeting the request.
Employers should also be aware that any undue or unnecessary delay in making even a small adjustment can be considered discriminatory, and that any adjustment made should be regularly reviewed to ensure it continues to support the employee.
You should also bear in mind that making changes to an employee’s working practices or arrangements may constitute a variation to their employment contract, therefore any changes should be made with the employee’s express agreement.
The duty to make reasonable adjustments for mental health disabilities
A mental health condition, as defined under the Equality Act, is “considered a disability if it has a long-term effect on the individual’s normal day-to-day activity“.
Mental health conditions which are recognised as constituting a disability include:
- bipolar disorder
- obsessive compulsive disorder
It is important to remember that the employee does not have to have received a formal diagnosis to be entitled to support. They are considered to have a ‘disability’ within the meaning of The Equality Act 2010 if their mental health affects them performing or carrying out ‘day-to-day activities’ in more than a minor or trivial way. The employee’s health condition must be of at least twelve months duration (or an expectation that it will last that long) in order to be protected by The Equality Act.
If an employee’s mental health amounts to a disability under the Equality Act, their employer is required by law not to discriminate against them and to consider making such reasonable adjustments to help them perform their role.
As with reasonable adjustments for physical disabilities, solutions to support employees with a mental health disability will depend on the condition and can vary from person to person; what may help one employee may not assist another.
Changes could include:
- Allocation of additional rest breaks
- Assistance with prioritising an employee’s workload on a day-to-day basis to help reduce stress
Any undue or unnecessary delay in making a small adjustment can be considered discriminatory. Employers should act promptly to consider the request and to implement any agreed adjustments.
Does the employee need to tell the employer about their disability?
An employee is not legally required to inform their employer about a mental health condition, unless they are a risk to themselves or others.
However, in order to obtain protection against discrimination under the Equality Act 2010, an employee must disclose their disability to their employer. Disclosure only needs to relate to how the condition impacts their job; personal health details do not have to be given. The employee may also stipulate who they would like to be informed, for example, limiting the disclosure to the HR department and not to the employee’s supervisor.
Where you have been put on notice by the employee that they have a disability, you have a duty to establish what adjustments are required.
Employers should also note that if you have evidence to ‘reasonably indicate’ your employee has a disability (such as a medical certificate) or you have become aware they are unwell, this will also offer protection under the Act without them having to explicitly inform you.
Can an employer refuse to make reasonable adjustments?
It is helpful for employers to approach reasonable adjustments as a way of supporting and retaining valued employees, as opposed to an obstacle to overcome.
In certain circumstances, however, a request for adjustments may not be reasonable, and the employer may legally be able to refuse to make the requested changes.
For a refusal to not constitute discrimination, the employer would need to be able to show that they have given full consideration of the request. If challenged, the employer would need to prove that the adjustments would not be reasonable and that their actions are justified, for example, if the changes would be too costly or would disrupt other people’s work.
Note also that where an employer has unintentionally failed to make a reasonable adjustment, this can still be considered either direct or indirect discrimination, and provide grounds for a tribunal claim.
Supporting mental health wellbeing at work
Creating a supportive and open environment can help to improve employee morale and performance, and reduce the risk of complaints. Creating a mental health strategy can help to focus efforts and concerns in an open, consistent and proactive way, by:
- Ensuring mental and health and physical health and disability are treated equally and considered as equally important within your policies, procedures and support programmes
- Supporting regular, informal discussion between managers and employees where problems can be openly discussed without judgement
- Providing mental health awareness training and workshops
- Appointing mental health ‘champions’ or ‘first-aiders’ within the workplace to provide employees with the confidence to approach a colleague who has been trained to handle mental health issues, and who can provide support or signposting to additional services and/or charities who help
- Educating your workforce to spot the signs of mental health issues both in themselves and in others
- Promoting an understanding of the importance of mental health at work
- Developing ‘Wellness Action Plans’ which can be used to support staff who have previously suffered a mental health issue
Being alert to signs of mental health issues in your employees can help to avoid issues arising and to nurture a supportive environment where employees are comfortable disclosing information and feel confident that they will be supported in dealing with their condition. This includes training managers to recognise potential signs such as:
- Absence from work because of sickness may increase and they may be turning up late to work
- Has your employee’s behaviour changed? Perhaps their mood or general demeanour has altered or their interaction with colleagues is different.
- Perhaps their standard of work has changed or they are unable to focus on tasks
- They may appear anxious, withdrawn or tired and previous enjoyment of certain aspects of their role has diminished from what it was
- There may be a change in drinking or smoking, it may have significantly increased
- Their appetite may have changed, it may have increased or markedly decreased
- They may appear lethargic and disinterested in everyday life, or they may be displaying ‘manic’ behaviour characterised as a period of abnormally elevated mood, intense energy, or other extreme and exaggerated behaviours
It is important to be aware that not everyone suffering from a mental health issue shows obvious or visible signs. Being approachable and open to employees to discuss mental health in a supportive environment ensures a commitment to a high level of occupational health and less chance of finding yourself in an employment tribunal.
DavidsonMorris’ employment law experts work with employers to support with positive workforce management, including dealing with requests for reasonable adjustments. If you are in any doubt as to whether you should agree to make reasonable adjustments or whether a mental health condition is protected under the Equality Act, we can help you understand your options and rights. Working closely with our team of HR specialists, we provide a holistic approach to managing difficult circumstances that can present legal risk, such as issues relating to disability discrimination. For help and advice, speak to us.
Last updated: 30 September 2020