Mental health and reasonable adjustments: what does the new Acas guidance recommend?
Mental health can have a significant impact on an individual's ability to perform well in their job. With an estimated one in four people experiencing a mental health problem at some point in their life, employers need to know how to support their staff.
Acas has published new non-statutory guidance on reasonable adjustments for mental health at work in conjunction with Affinity Health at Work. It's a helpful guide which provides:
- Examples of reasonable adjustments and case studies
- Simple guidance for employees to request reasonable adjustments for mental health and template letters
- Template response letters employers can use to respond to requests
- Guidance to help managers have conversations about mental health adjustments, and
- Information to help employers review policies and procedures to ensure that they are clear and accessible, use caring language and allow mangers to take a person by person approach.
The examples given are particularly helpful. In addition to looking at making adjustments to someone's roles and responsibilities, Acas also suggest reviewing working relationships and communication styles (something that is often overlooked). This could include making sure that someone is working with trusted people to limit the impact of different working and communication styles, and/or agreeing a communication method to help reduce anxiety - for example, by avoiding spontaneous phone calls.
Section 20 of the Equality Act 2010 sets out the duty on employers to make reasonable adjustments to ensure that individuals with a disability are not placed at a disadvantage in the workplace. A disability is defined as a physical or mental impairment. Mental impairment isn't defined but it is intended to cover a wide range of conditions relating to mental functioning, ranging from stress, depression, anxiety, eating disorders, bipolar disorder, schizophrenia and psychosis.
Staff may say that they are suffering from, stress, anxiety or depression. These conditions will only be deemed to be disabilities if they have a substantial and long-term negative effect on the employee's ability to carry out normal day to day tasks. This might include not being able to sleep, becoming withdrawn and avoiding people and social events.
Employers have a duty to make reasonable adjustments to any member of staff who has a disability to enable them to continue to work, or to return to work. Deciding whether or not such adjustments are reasonable will include taking into account factors such as the cost, practicability and effectiveness of the adjustment.
Decided cases on reasonable adjustments for employees with mental ill-health
These cases will give you a flavour of the types of adjustments a tribunal deem appropriate.
1. Adjusting internal processes
This might include delaying trigger points in absence policies, giving someone more time to meet performance targets and, as the case below demonstrates, getting disputes resolved quickly.
In Lamb v The Garrard Academy, the claimant was a teacher who developed reactive depression as a result of a couple of incidents at school. She also suffered from long-standing PTSD. Ms Lamb went off sick and raised a grievance about how the school had dealt with these incidents. The school investigated and recommended upholding her grievance. It then set aside the report on the basis that it was 'inadequate'. The Chief Executive promised Ms Lamb that he would deal with her grievance, then changed his mind, and it took 10 months to reach a decision.
The EAT upheld Ms Lamb's arguments that the school should have made the following reasonable adjustments:
- Thoroughly reviewed her original grievance; and
- Reached a decision within a month of rejecting the original report.
The tribunal in Northern Ireland reached a similar decision in the case of McLaughlin v Charles Hurst. Ms McLaughlin worked as customer service advisor working, on average almost 48 hours a week. She suffered from mental ill-health and had absences from work due to bouts of depression and panic attacks. She applied to reduce her working hours to 40 and explained that working long hours was having a severe impact on her wellbeing. Her request was eventually granted 14 months later.
The tribunal held that her employer had failed in its duty to make the following reasonable adjustments:
- Taken a pro-active approach to dealing with her flexible working application; and
- Reached a decision in a timely manner which would have given her the benefit of reduced hours at an earlier stage
2. Reallocating duties, changing their role or where its performed
Where an individual is struggling with a certain part of their role, employers may be able to reallocate these duties to another member of staff or change their responsibilities to better suit the employee's abilities. They may also need to relocate an employee as this case demonstrates
In London Fire Commissioner v Hurle, Mr Hurle started a management training program and was posted to a fire station, more than two hours away from his home. He made it clear that he could not commit to that level of travel in the long-term. His daughter became distressed that her dad was out of the house for such long periods and he asked his manager to support his application to transfer to a post closer to his home. There were no vacancies at that time and Mr Hurle was signed off with depression. When he returned to work, he asked for a number of adjustments to be made; a phased return, shorter working days and, in the long-term, to be transferred to a station that would reduce his commuting time. One role did come up, but Mr Hurle was not allowed to apply for a transfer while he was off sick. He was subsequently dismissed because of his unacceptable attendance record.
The tribunal upheld his disability discrimination claim and ruled that the employer had failed in its duty to make the following adjustments:
- Adapted the policy and its practice to allow a station manager on development be put forward for transfer; and
- Put Mr Hurle forward for the position of station manager which was available nearer to his home
Tips for employers
Even where a mental health condition doesn't amount to a disability as defined in the legislation, we recommend that you take a proactive approach to promoting mental wellbeing by:
- Considering what adjustments you can make to support staff with mental health problems in order that you can retain their skills and experience
- Using occupational health to support employees to remain in work or to return to work
- Creating an environment where people don't feel embarrassed about talking about their mental health
- Making sure that staff aren't regularly overloaded with work
- Checking in with staff and asking about their wellbeing
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This article is based on a longer article published in the ELA briefing by my colleagues, Deborah Casale and Celine Winham