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Employers are increasingly aware of the importance of supporting employees’ mental health for many reasons, including improved retention, attendance, and productivity. Underpinning this is a legal duty to make reasonable adjustments where the individual’s mental health condition is a disability under the Equality Act 2010.

Understandably, managers may have concerns about privacy or not being equipped for dealing with mental health issues in the workplace. Last year, Acas published their guidance on reasonable adjustments for mental health, which provides practical advice on the topic.

In this blog, we highlight employers’ legal responsibilities, give examples of reasonable adjustments for mental health, and offer a few tips for employers.

What are employers’ legal responsibilities?

If the impact of the individual’s mental health meets the definition of a disability under the Equality Act, the employer has a duty to make reasonable adjustments, and must not discriminate against them in relation to their disability.

Employers can be expected to make reasonable adjustments unless they can evidence that they could not reasonably be expected to know that the individual has a disability. This test, set out in the Equality Act, can be a tough one to meet, as there may be several reasons why an employer should be expected to know. Further, there is no obligation on the individual to disclose to you that they may have a disability, so this means that employers should be alert for signs that the employee has a disability.

Employers also have other legal responsibilities for the workforce’s mental health under health and safety law and the duty of care.

Understanding the Equality Act – the definition of disability

The Equality Act sets out a clear definition of when an individual will be considered disabled for the purposes of prohibiting discrimination:

• the individual has a mental or physical impairment;
• the impairment affects their ability to carry out normal day-to-day activities;
• the adverse effect is substantial; and
• the adverse effect is long term.

When considering the effect of the impairment, any medication or treatment (such as therapy) must be disregarded. There is detailed government guidance and case law on all aspects of this definition. However, Acas advises to make adjustments even if the individual does not strictly fall within the definition.

Reasonable adjustments for mental health

The duty to make reasonable adjustments can apply to all aspects of the working relationship, from recruitment to dismissal. The aim of reasonable adjustments is to accommodate an individual’s disability; helping them remain in work, or enabling them to return to work.

When considering what could assist an employee, Acas guidance reminds employers to take into account differences between jobs and individuals, and to consider fluctuations in an individual’s mental health over time. We strongly recommend consulting the individual about adjustments, although employers should not rely solely on the individual’s suggestions. It may be advisable to obtain independent advice from an occupational health professional.

The employer only has to take steps that are reasonable. We can help you to work out what is reasonable, weighing up factors such as the:

• likelihood that the adjustment will be effective;
• 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 practicability of the proposed adjustment.

Examples of reasonable adjustments for mental health

Examples of potential reasonable adjustments include:

• reallocating duties that the individual finds stressful or triggering;
• paid time off to attend medical appointments or therapy sessions;
• 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

Addressing reasonable adjustments for an individual’s mental health may feel daunting to managers. We can help you deal with employees supportively and sensitively and prepare for meetings. Our general tips for employers include:

• having an open culture, where individuals feel able to talk to managers about their mental health, and managers feel confident having such conversations;
• supporting managers to foster this culture and helping them to prepare for meetings to discuss an individual’s mental health, by finding out more about the condition, while keeping an open mind about the individual’s personal experience;
• agreeing with the employee what information they are happy to share with colleagues, if this is necessary to implement any reasonable adjustments, whilst keeping any health-related information highly confidential;
• for individuals who work with different teams or parts of the business, recording adjustments in a ‘passport’ to be shared with other managers (with the individual’s agreement) to ensure the adjustments are seamlessly implemented;
• using trial periods and regularly reviewing and assessing the impact of any adjustments, as these are important to getting adjustments right and ensuring they remain beneficial; and
• agreeing with the individual and writing down the plan for adjustments, timescales and the review date, and then ensuring this is properly implemented.

How we can help

We can support you to create an inclusive and supportive workplace for individuals with mental health problems. This includes advising on identifying disabilities and working out reasonable adjustments; drafting meeting plans, correspondence and recording the plan for adjustments; signposting sources of funding and support; providing a policy on reasonable adjustments and reviewing your policies to ensure considerations about reasonable adjustments are built in and highlighted.

For further information, please contact one of our Employment experts.

This 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.