ACAS have launched new guidance on reasonable adjustments for mental health at work, with the aim of providing support and practical steps for both employers and employees.
What does the law say about reasonable adjustments?
Under section 20 of the Equality Act 2010, employers are under a duty to make reasonable adjustments to avoid disadvantage where a disabled person is placed at a substantial disadvantage as a result of an employer’s provision, criterion or practice (PCP), a physical feature of the employer’s premises and or an employer’s failure to provide an auxiliary aid. The duty only applies where the employer knows or could reasonably be expected to know about both the disability and the substantial disadvantage.
Disability is defined as a mental or physical impairment that has a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities. As the definition covers mental impairments, mental health could be considered as a disability, provided it meets the relevant requirements for having a substantial and long-term affect.
The new ACAS guidance
ACAS have published new guidance and resources which highlight that employers should be taking employees’ mental impairment as seriously, and with the same care, as physical impairments. The guidance suggests that employers and employees should work together to agree and review reasonable adjustments over time to make sure the adjustments are working well, especially if the employee splits their time between workplaces (e.g. office and home) as their adjustments for each workplace may change.
The guidance refers to employers being required to make reasonable adjustments where a disabled person asks for them. Whilst it is important to listen to employees and take into account their views as they will ultimately know best the disadvantage they are suffering, it is also important for employers to note that they are not required to make any or all adjustments requested. As set out above, the requirement is that employers make adjustments that overcome any substantial disadvantage suffered that are reasonable in the circumstances i.e. if an employee requests an adjustment that is not reasonable or one that would not overcome the disadvantage they are suffering, an employer is not required to make these.
The guidance provides some examples of reasonable adjustments for mental health impairments including:
- The physical working environment
- Working arrangements
- Adapting how a policy is applied
- Changing an employee’s role and responsibilities
- Reviewing working relationships and communication styles
As well as practical and helpful direction for employers, including how to manage employees with reasonable adjustments for mental health, the guidance provides support to employees. It covers tips on how employees can request reasonable adjustments, how they can best prepare for meetings to discuss their requirements and how they can best explain their mental health.
It is important that employers are aware that mental health conditions can be considered a disability and they should make an assessment of each case based on its own facts. Our advice would always be that any assessment is made with the support of medical advice.
There is also a recommendation from ACAS that employers should try to make reasonable adjustments even if the mental health condition or concern is not a disability. This of course wouldn’t be legally required, and an employee would not be able to bring a claim if reasonable adjustments were not made in this situation, however provided any adjustment requested is not too onerous for the employer, it may want to consider making it to enable the person to better do their role/function in the workplace. In making any adjustments in these circumstances employers should be mindful of setting precedents/opening themselves up to other employees requesting similar adjustments. Where an employer is making adjustments for a disabled employee they are able to justify treating the employee more favourably to overcome the disadvantage they are suffering, however there won’t be the same justification for non-disabled employees. This could lead to employee relations issues about parity of treatment.
Although the guidance is not statutory, it is a helpful guide for employers and an opportunity for them to review how they currently support mental health in the workplace.
If you require any advice on reasonable adjustments, or would like assistance in reviewing your policies to ensure they are suitable for employees with mental health problem, please contact our Employment Team.