Previously we discussed the prevalence of mental health considerations in employment law and across the workplace, noting that the rising cost of living and the working environment post-COVID have contributed to an increase in the number of employees facing mental health problems (such as loneliness and stress).
In a recent survey by PWC, employees identified well-being support as the third most likely way to address staff retention; however, only 29% of employees recognised that they received this support. The Health and Safety Executive estimates 912,000 workers suffered from work-related stress, depression or anxiety from 2021 to 2022, with a consequential 17 million working days lost. As mental health considerations and recognition grow, employers will likely see increased requirements to safeguard their workforce.
In this issue, we consider the recent ACAS guidance set for employers and employees when approaching mental health issues in the workplace, particularly considering and implementing reasonable adjustments. The guidance recommends that reasonable adjustments be implemented more frequently for employees with mental health conditions, as opposed to solely for those for which there is a legal obligation. ACAS highlights the benefits for organisations, including reducing staff turnover, reducing absences and promoting a healthy working environment.
Legal requirements for employers
Employers have a general duty, as far as reasonably practicable, to ensure the health, safety and welfare of all their employees at work. This duty includes undertaking risk assessments, applying principles of prevention and providing information to employees about the potential risks in the workplace.
Equality Act 2010 – mental health & disability
The Equality Act 2010 places more stringent requirements on employers where a person who suffers from mental ill health meets the Act’s definition of a disability. In such an instance, a duty will be placed on an employer to make reasonable adjustments relevant to the disability concerned.
To establish mental health as a disability, the employee will need to suffer from a mental impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Where the employee is suffering from stress, they will be required to show that there is a mental impairment as opposed to a reaction to temporary work-related difficulties or personal problems; however, it is important to recognise that temporary difficulties can often lead to individuals developing conditions such as anxiety or depression.
Employees may be reluctant to disclose any details regarding a disability or potential disability to an employer. ACAS guidance suggests that a reluctance to disclose can be due to the employee not believing that they are disabled or realising that their condition is a disability, embarrassment about the condition or fear of the employer’s reaction to the disclosure. Whether the employer is aware of the disability is not a relevant factor in determining whether the employee is disabled; however, an employer will not be under a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know, that the individual concerned has a disability and is likely to be placed at a substantial disadvantage in the workplace.
Regardless of whether or not the employee satisfies the disability definition or whether the employer is aware or should have been aware of the condition, it is in the employer’s best interest to take active steps to manage the well-being of its workforce. An employer that acts to raise mental health awareness and actively addresses workplace mental health issues will reduce the number of employees suffering from mental ill health and provide a more manageable environment for those that do. Not only will the employees benefit from this, but organisations embedding an effective approach to mental health will see reduced levels of staff turnover, thereby minimising recruitment and training costs. Employers will also have less staff absences and reduce the risk of liability for disability discrimination claims or claims for a failure to make reasonable adjustments.
Failure to make reasonable adjustments
Employers should be alert to the potential awards that can be made by the Tribunal when an employee succeeds in bringing a discrimination claim for the failure to make reasonable adjustments. The Tribunal can recommend that the employer takes certain action to reduce the effect of the discrimination on the employee. The Tribunal may also make a declaration as to the rights of the employee or the employer in respect of matters relating to the alleged discrimination.
More commonly, the Tribunal can award compensation for the discrimination. It is important to note that the level of compensation that may be awarded is uncapped. The compensation is based on the loss suffered by the employee as a result of the discrimination, with the aim being to place the employee in the same position as if the discrimination had not occurred. The award will commonly comprise of both financial loss and injury to feelings. Injury to feelings can be awarded even where no financial loss is incurred and is calculated by the Tribunal in reference to the lower, middle and upper ‘Vento bands’. The maximum award for the upper band is currently £56,200, covering serious discrimination cases.
Recognising mental health issues
It can often be difficult for employers to identify that an employee is suffering from mental health issues. Causes of mental health issues can often arise in a personal sphere away from the working environment, and identification of these issues have been significantly hindered due to the increase in working-from-home arrangements resulting in less employee contact. In addition to the remote working environment, mental health conditions often fluctuate over time, resulting in difficulties for employers to recognise and monitor an employee’s condition. As such, open discussions between the parties are encouraged.
ACAS guidance to employers is that not all staff members will show signs of poor mental health. If an individual exhibits some signs, ACAS stresses the importance of not making assumptions about the condition. That being said, possible signs of mental health issues include:
- Increase in absences;
- Appearing tired, anxious or withdrawn;
- Changes to the standard of work or focus dedicated to tasks; or
- Changes in behaviour, mood or how the individual interacts with colleagues.
An employee’s withdrawal from work can be exhibited through frequently arriving late or leaving early, taking extended lunch breaks, or being elusive or evasive from colleagues or supervisors. A drop in work performance is often shown through a lack of motivation, lapses in memory, uncharacteristic errors or indecision.
To encourage employees to openly discuss their mental health concerns, employers should raise mental health awareness to reduce any associated stigma. They could introduce a system of mental health first aiders or contacts (colleagues trained to recognise the signs of mental health illnesses and can provide or signpost appropriate support). Promoting open discussions both in practice and policy will encourage employees to openly share issues and aid employers in making the appropriate adjustments.
Further to ACAS guidance, where an employer does not agree that a member of staff has a disability, they should avoid making any assumptions as to their disability status and focus on supporting the individual concerned. The employer should remain considerate of the impacts on the individual’s day-to-day life and carefully review any medical advice received.
ACAS procedural guidance
There can often be difficult considerations for employers due to the uncertainty of the duration of mental health conditions and whether any adjustments put in place will be effective. The existence of medical advice and obtaining occupational health reports will be of great assistance to an employer’s understanding of the condition. ACAS highlights the importance of employers and employees cooperating to find suitable adjustments for both parties, recommending that adjustments should be considered in the office and remote environment.
ACAS have provided five examples of reasonable adjustments that can be implemented regardless of the employee’s role:
- Changing someone’s role and responsibilities. This can extend from a complete change of role to a simple review of the employee’s responsibilities, aiming to reduce the most stressful aspects;
- Reviewing working relationships so that the employee only collaborates with trusted colleagues, limiting the impact of different working styles. Agreeing on a preferred method of communication can also reduce anxiety, with spontaneous phone calls avoided where possible;
- Changing the physical working environment. This can include relocating the employee to a quieter part of the office, providing reserved parking to reduce commuting stress, and allowing employees to work from home or providing regular breaks;
- Review company policy to ensure that employees are not negatively impacted by absences due to mental ill-health. A health and well-being policy should be reviewed or implemented to check it is clear to employees when reasonable adjustments can be accessed and what mental health support is available to employees in line with the organisation’s approach; and
- Additional support through an assigned mentor and extra training provision or coaching whilst ensuring that any supervision is regular and effective.
A conversation should be scheduled with both parties, having carefully considered the relevant policies and any possible adjustments. ACAS recommends that the meeting should address how the employee feels and clearly set out the organisation’s policy and approach to mental well-being. The employee should be encouraged to put forward any reasonable adjustments that they consider appropriate for their condition, and the employer should then consider these and raise their own proposals.
If any adjustments are agreed, these should be confirmed in writing following the meeting, with a support process implemented to review how the employee is progressing with the reasonable adjustments. Follow-up meetings should be scheduled to discuss the employee’s progress and whether necessary alterations or reconsideration are needed. The employer should remain mindful of how the adjustments are impacting other employees, particularly whether there has been an increase in workloads for others.
ACAS case studies
ACAS included within its guidance several case studies where reasonable adjustments have helped staff cope with mental health issues. A study of a referral system implemented by Birmingham City Council highlights the benefits of using occupational health reports as the basis for making reasonable adjustments.
Under the system, managers refer employees, where appropriate, to occupational health experts via a phone appointment. The report will advise on any appropriate adjustments or adaptations for the employee, both in the short and long term. The case study focuses on how occupational health reports are beneficial as the adjustments and recommendations are bespoke to the employee's specific needs. The basis for the adjustments is established using a ‘biopsychosocial model’ to understand the employee’s needs with greater accuracy.
A further case study of the civil service shows that the most effective adjustments arose organically through manager and team support. Attention should be placed on the strengths of the employee as opposed to highlighting the work that they are unable to do. In this study, a union representative was used to take control of the process regarding occupational health reports and monitor the implementation of reasonable adjustments. This left the employee with greater time to focus solely on their work.
