ACAS has published new guidance to help employers in making reasonable adjustments for employees’ mental health and wellbeing. It underlines the importance of treating mental health conditions with the same care as physical illness and reminds employers of the benefits of making reasonable adjustments including helping with the recruitment, retention and training costs of employees, as well as potentially reducing absence and increasing productivity.
The guide offers insight from an employer and an employee perspective from the earliest stages of preparing for a meeting to discuss what might be needed to ongoing monitoring and the further adaption of adjustments after they have been trialled. It points out that managing employees with mental health disabilities often requires different processes from that appropriate to physical disabilities and recommends employers have a tailored policy that covers reasonable adjustments for mental health.
A reminder. The duty to make reasonable adjustments stems from the Equality Act 2010 and covers a physical or mental impairment which has a substantial and long-term adverse effect upon the individual’s ability to perform day-to-day activities. Having said that, ACAS states in its guidance that ‘employers should try to make reasonable adjustments even if the issue is not a disability’.
The duty in its widest sense is generally well understood by HR professionals as it relates to physical impairments, but less so when it comes to mental impairments which are often less obvious. On that point, it’s worth saying the duty only arises where an employer knows, or could reasonably be expected to know, about an individual’s disability which can be more of challenge with mental impairments.
So, let’s pick up on that point. If you don’t know about an employee’s mental impairment, and you couldn’t reasonably be expected to know, then you have a defence to any action taken. But what does that mean in practice? On the line to help with that, Amy Hextell:
Amy Hextell: "Often employers will say to us, that actually if we had known more about somebody's disability or the difficulties that they were having, of course they would have made the reasonable adjustments that were needed and there is a defence, legally, in circumstances where an employer either doesn't know that somebody is disabled, or they don't know that something that they are requiring of the employee puts that employee at a substantial disadvantage because of their disability, there is a defence to a failure to make reasonable adjustments claim but I think employers need to be careful around that because it's not as simple as saying, well, the employee never came to me and told me and showed me a document with a diagnosis on and what they needed. The duty to make adjustments is very firmly placed on employers and employers have to be proactive in that space. The law says that it's not enough to simply say you didn't know when actually the all the signs were there. So not only is it the case that you have a duty to make adjustments where you know about disability and a disadvantage, but also where you ought reasonably to have known and that's where the concept of 'signs and signals' come into it which, I accept, is very hard for employers, particularly I think over the course of the last few months where you have perhaps had people either working at home or not everybody in one place at one time and, actually, those signs might be more subtle and more difficult to pick up when you're not seeing people regularly. But that's really why we're advocating for regular check-ins and discussions, not simply about work, but wellbeing chats with your staff to make sure that you can pick up on some of the more subtle signs and then you're sort of in that position where you've got enough information to go ahead and discuss making adjustments and it may be that you need to discuss those with HR, or even take legal advice at that early stage. But it's not an absolute excuse to say, well, the employee never came to me and, you know, it wasn't crystal clear that this person needed anything from me. The law does firmly place that that duty to be proactive on an employer."
Joe Glavina: “Amy, if employees do open up and talk to their manager how does the manager maintain confidentiality?”
Amy Hextell: “This is a really difficult area and often an area that we get asked about because it really has got a lot to consider in it because you've got the need to meet your legal duty as an employer and make adjustments and provide adequate support. You've also then got the need to make sure that you're maintaining confidentiality, and of course, for the employee who has disclosed something it is a very sensitive subject and as much as lots of talk about mental health is helping to de-stigmatise it, there is still some stigma attached to it particularly in relation to the workplace and disclosing information. So, I think that really the way to redress this is that in that discussion, where somebody is disclosing information to you about their mental health and about the support they need, being really clear with them in the first instance that it may be necessary to share some of that information with others in order to put in place the support, but agreeing boundaries with them, if you like. So, being open and honest in that conversation and agreeing what parts of the conversation, or what parts of the information, the employee would be happy for you to disclose with others. I think really importantly, and the bit that would probably get forgotten but it's really vital from an employment law and risk perspective really, is documenting that. So, when you're having that discussion with the employee, note down not just what it is that they're saying, but also what it is that they're happy for you to disclose, what it is that they're not happy to be disclosed and then you're decision as a manager, or the thoughts that are in your mind as a manager, about why, for example, you wouldn't be disclosing something, so that if ever then there were to be an issue about whether or not you should have done more, or the employee is challenging you around disclosing information, you're able to rely then on those contemporaneous documents which show the decision making and could act as a defence to potential legal claim.”
The new guidance published by ACAS is available from their website and we have put a link to it in the transcript of this programme. We suggest you review your current mental health support against the guidance and make changes where necessary.
LINKS
- Link to ACAS guide to mental health reasonable adjustments
