Employees are protected from discrimination at work if they have a qualifying disability under the Equality Act 2010. The obligation on employers to prevent unlawful disability discrimination extends not only to employees’ physical health and visible conditions but also to their mental health and well-being.
Section 20 of the Act, in particular, gives eligible employees the right to request that their employer make reasonable adjustments so that they can apply for or perform their job without being disadvantaged. This may entail altering or adapting the employee’s working environment or arrangements in order to eliminate or reduce the impact of the employee’s disability.
Adjustments for new employees with disabilities, as well as employees who have become disabled during their employment, are covered by the duty.
If an employer fails to make such reasonable adjustments, the individual may be able to bring a tribunal claim against them.
Employer’s duty to make reasonable adjustments
Reasonable adjustments are changes made by an employer to internal policies, working practices or environment, or the provision of specialist equipment or support designed to reduce or remove disadvantages to employees or job applicants with a qualifying disability under the Equality Act.
Employers may have to make reasonable adjustments if the individual, when compared with others who don’t have a disability, is at a substantial disadvantage because of a workplace ‘provision, criterion or practice’, or a physical feature of your workplace or not having ‘auxiliary aid’ or extra equipment.
What is ‘reasonable’?
There is no fixed or arbitrary threshold in law as to what constitutes a reasonable adjustment. Instead, what is ‘reasonable’ should be determined by the facts of each particular request, taking into account factors such as the proportionality of the employee’s proposed changes and the resources available to the employer. In general, the larger the employer is and the more resources it has, the more the employer is expected to do in order to meet the request.
Employers cannot ask employees to pay or contribute towards the cost of implementing any changes classed as reasonable adjustments.
Adjustments could include the following:
- Accepting a more flexible work schedule, such as a reduction in the employee’s working hours or a different start/finish time.
- Reassigning the employee to more appropriate tasks.
- Supporting a gradual return to work if an employee has been absent due to illness.
- Changing the employee’s work environment and/or equipment, such as providing a specialised chair, relocating a desk to better suit their needs, or working from home if possible.
When evaluating a request for reasonable accommodations, the employer should consider the following factors:
- Whether the adjustment is appropriate to remove or reduce disadvantages resulting from the disability.
- Any financial or other costs incurred as a result of the change, including money already spent.
- The practicalities of implementing the change.
- Calculating the potential for disruption as a result of the adjustment.
- Other, alternative assistance that may be available.
Discrimination can be defined as any undue or unnecessary delay in making a minor adjustment. Employers should respond quickly to the request and make any agreed-upon changes. Employers should also be aware that any undue or unnecessary delay in making even minor adjustments can be construed as discriminatory, and that any adjustment made should be reviewed on a regular basis to ensure that it continues to benefit the employee.
You should also keep in mind that changing an employee’s working practices or arrangements may be considered a variation of their employment contract, and any changes should only be made with the employee’s express permission.
Reasonable adjustments for mental health disabilities
Under the Equality Act, a mental health condition is considered a disability if it has a long-term effect on the individual’s normal day-to-day activity. The following mental health conditions are considered to be disabilities:
- Bipolar disorder
- Obsessive-compulsive disorder (OCD)
Other mental health conditions need to be assessed on a case-by-case basis, such as stress, anxiety and depression, as to whether they would be considered disabilities if they substantially and adversely affect the performance of everyday activities.
It’s important to remember that the employee doesn’t need a formal diagnosis to be eligible for assistance. If their mental health interferes with them performing or carrying out day-to-day activities in more than a minor or trivial way, they are considered to have a disability under the Equality Act 2010. To be protected under The Equality Act, the employee’s health condition must have lasted at least twelve months (or be expected to last that long).
If an employee’s mental health qualifies as a disability under the Equality Act, their employer must not discriminate against them and must consider making reasonable adjustments to help them perform their job.
Solutions to support employees with a mental health disability, like reasonable adjustments for physical disabilities, will depend on the condition and can vary from person to person; what may help one employee may not help another. Changes could include providing additional rest periods or day-to-day support to help prioritise an employee’s workload to help reduce stress.
Can an employer refuse to make reasonable adjustments?
Employers should view reasonable adjustments as a way to support and retain valued employees, rather than as a challenge to overcome.
However, in some cases, a request for adjustments may not be reasonable, and the employer may have the right to refuse to make the requested changes.
In order for a refusal to be considered non-discriminatory, the employer must be able to demonstrate that they have given the request full consideration. If the employer is challenged, the employer must show that the changes are not reasonable and that their actions are justified, such as if the changes are too costly or disrupt other people’s work.
It’s also worth noting that an employer’s unintentional failure to make a reasonable adjustment can still be considered discrimination, whether direct or indirect, and give rise to a tribunal claim.
ACAS guidance on mental health at work
ACAS has published detailed guidance and best practice advice on how to approach mental well-being in the workplace. While not legally binding, it is advisable for employers and employees to follow the guidance, not least as it is helpful and acts as a useful resource.
The key points of the ACAS mental health guidance are as follows:
- Mental health reasonable adjustments bring benefits for both employers and employees; while employees can be supported in staying in work through recovery, supporting workers and their mental well-being can help improve the organisation’s staff retention and workplace morale, while lowering recruitment and training costs.
- Reasonable adjustments should be discussed and agreed collaboratively between the employer and employee.
- Reasonable adjustments could include aspects such as the physical working environment, work arrangements, changing job descriptions and responsibilities.
- Mental health is specific to the individual, with recovery and management of any illness or condition differing from person to person. As such, mental health reasonable adjustments should be tailored to the individual and the specific circumstances.
- The role of managers in particular is highlighted as being instrumental in ensuring effective workplace mental health support. This ranges from being able to identify potential mental health issues to discussing mental health wellbeing with team members and signposting to relevant support services and information resources.
- Mental health reasonable adjustments should be reviewed regularly and amended where required in support of the individual’s progress and recovery.
- Employers are recommended to develop a reasonable adjustments policy, which includes mental health provisions, and to review workplace policies to ensure they align with the organisation’s mental wellbeing policy guidance.
Supporting employee mental wellbeing
Employee morale and performance can be improved, and the risk of complaints can be reduced, by creating a supportive and open environment. Developing a mental health strategy can assist in focusing efforts and concerns in a transparent, consistent, and proactive manner by:
- Ensuring that mental and physical health, as well as disability, are treated equally and prioritised in your policies, procedures, and support programmes.
- Supporting regular, informal meetings between managers and employees where problems can be discussed openly and without fear of being judged.
- Training and workshops on mental health awareness.
- Appointing mental health ‘champions’ or ‘first-aiders‘ in the workplace to give employees the confidence to approach a coworker who has been trained to deal with mental health issues and can offer support or referrals to additional services and/or charities that can help.
- Educating your employees on how to recognise the signs of mental illness in themselves and others.
- Increasing employee awareness of the importance of mental health at work.
- Creating Wellness Action Plans in collaboration with employees who have had a mental health problem in the past.
Being aware of signs of mental health issues in your employees can help you avoid problems and cultivate a supportive environment where employees feel safe disclosing information and know they will be supported in dealing with their condition. This includes teaching managers how to spot warning signs. Has sickness-related absence from work increased, or has the employee’s attitude shifted? Perhaps their mood or demeanour has changed, or their interactions with coworkers have changed. Perhaps their work quality has deteriorated, or they are unable to concentrate on tasks, or they may appear anxious, withdrawn, or tired, and no longer enjoy certain aspects of their role as much as they once did.
It’s important to remember that not everyone who has a mental health problem exhibits obvious or visible symptoms. Being approachable and open to employees in a supportive environment to discuss mental health ensures a commitment to a high level of occupational health and reduces the risk of defending an employment tribunal claim.
Reasonable adjustments for mental health disabilities FAQs
Do employers have to make reasonable adjustments for mental health?
Employers are required to make reasonable adjustments for qualifying disabilities which quality for protection under the Equality Act, which can include certain mental health conditions.
What are considered reasonable adjustments?
Reasonable adjustments are changes which an employer makes to reduce or remove a disadvantage relating to someone's disability when doing their job or applying for a job.
Are mental health illness a disability under the Equality Act?
To gain the protection of the Equality Act, employees have to prove their condition meets the legal definition of disability in the Act, which for mental health disorders includes schizophrenia, bipolar disorder or depression.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.