Reasonable Adjustments For Mental Health

As we know, 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, there is more need than ever for employers to understand how to best support their staff.

Last month, Acas published new non-statutory guidance on reasonable adjustments for mental health at work in conjunction with Affinity Health at Work. It covers what reasonable adjustments for mental health are, provides examples of such adjustments and sets out the benefits for making these adjustments. It also provides simple guidance for employees to request reasonable adjustments for mental health and for employers in responding to those requests, as well as template request and response letters. The guidance goes on to recommend good practice for having conversations about mental health adjustments in the workplace and reviewing policies and procedures with mental health adjustments in mind.

A reminder of the law

Section 20 of the EqA 2010 sets out the duty on employers to make reasonable adjustments to ensure that individuals with a disability (which include mental health disabilities) are not placed at a disadvantage in the workplace. Deciding whether or not such adjustments are reasonable will include taking into account factors such as the cost, practicability and effectiveness of the adjustment.

To successfully claim for a failure to comply with the duty to make reasonable adjustments under s.21 of the EqA 2010, a claimant must demonstrate the following:

• the individual must be a disabled person: they must have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The impairment must have lasted or be likely to last for at least 12 months;
• the employer must know, or ought to know, that the individual is disabled: the individual should have disclosed their disability to the employer, or it should be apparent to the employer from the individual’s behaviour or circumstances;
• the individual must be placed at a substantial disadvantage by a provision, criterion or practice (PCP) in comparison to persons who are not disabled. This could be in relation to access to employment, training, facilities or services;
• there must be a reasonable adjustment that the employer could have made: that would remove or reduce the disadvantage suffered by the individual. The adjustment must be reasonable in the circumstances; and
• the employer must have failed to make the reasonable adjustment or that the adjustment made was not effective in removing or reducing the disadvantage.

It is usual to plead indirect disability discrimination together with a failure to make reasonable adjustments claim as an additional or alternative claim, due to the overlap in the statutory drafting whereby it is necessary to identify the PCP which has either failed to be adjusted in the workplace or has been applied in a discriminatory manner.

The burden of proof shifts to the employer once the individual has established a prima facie case of discrimination to show either that they did make the reasonable adjustments required, or that the adjustment was not reasonable in the circumstances.

Reasonable adjustments: examples

Flexible working arrangements

These can take the form of adjustments to working hours, such as allowing an individual to work part-time, flexible hours or working from home. For example, in Dunn, the claimant suffered depression and anxiety and his request for flexible working arrangements was denied, which was held to be a failure to make reasonable adjustments.

In Carreras, Ms Carreras requested to work from home two days per week due to her chronic fatigue syndrome. Her request was denied and she was later dismissed. The employer’s refusal to allow Ms Carreras to work from home amounted to a failure to make reasonable adjustments.

Changes to the physical work environment

These could include adjustments to lighting, noise levels, temperature controls or providing a quiet space for the individual to work. In Lamb, the claimant was a teacher who suffered from post-traumatic stress disorder (PTSD) and requested to teach in a classroom with more natural light and ventilation. Her request was denied. By not considering Ms Lamb’s request for a better working environment, the tribunal found that the employer failed to make reasonable adjustments.

In Preston, the claimant had primary reading epilepsy which meant he was at risk of suffering tonic-clonic seizures when reading. The relevant reasonable adjustment was to conduct permitted breaks away from his computer screen which the employer was successful in demonstrating.

Reallocation of duties or relocation

Where an individual is struggling with a certain task or responsibility, employers may be able to reallocate these duties to another member of staff or change the job responsibilities to better suit the employee’s abilities.

In Brangwyn, the claimant worked as an occupational therapy technician and suffered from a phobia of blood, injections and needles. Adjustments were made to ensure he was not required to work on or near the hospital wards. On the facts of the case, no PCP was found in any event.

In Hurle, Mr Hurle was a fire station manager whose daughter was experiencing mental health issues. He was then diagnosed with depression himself and prescribed medication. Due to these circumstances, he applied for an urgent transfer to a station closer to his home. The occupational health report supported the transfer for a shorter commute. The employer denied the transfer and dismissed him for poor attendance which was found to be a failure to make reasonable adjustments.

Training and support

Employers can offer training and support to help individuals manage their mental health conditions, such as offering access to a counsellor or employee assistance programme, providing mental health awareness training, training mental health first aiders, providing unconscious bias training and appointing mental health or disability champions to gently open up the wider conversation.

Adjustments to work expectations and pay rates

This could include reducing workloads, adapting targets or adjusting deadlines for completing tasks, as well as extending a period of full sick pay or maintaining existing pay rates upon reallocation to another role for a trial period. In Knightley, the employer was found to have failed to make a reasonable adjustment by not allowing the claimant additional time to appeal against her dismissal.

Tricky issues

Identifying the need for adjustments: disclosure and employer’s knowledge

While the legal obligation falls upon the employer to make adjustments, it is expected that the employee communicates their mental health condition to their employer in an identifiable
way for the duty to make reasonable adjustments to arise. We refer back to Simon Clark and Clare Fletcher’s excellent article in the April 2023 ELA Briefing (‘Neurodiversity: awareness or knowledge’), which set out a number of useful cases on this point.

One such case included Fabian where the claimant ticked ‘no’ to disability on his medical questionnaire upon recruitment and never mentioned his autism during employment, beyond once vaguely comparing himself to Greta Thunberg, which was not understood or taken to mean a reference to autism at the time, meaning that his claim failed.

Balancing the needs of the business with the individual’s needs: reasonableness

Employers are entitled to assess whether the adjustments required negatively impact the business’s operations or the work of other employees. The employer in Aleem was found not to have breached its duty to make reasonable adjustments, as it was not a reasonable adjustment for the claimant, who was a teacher, to be paid at a higher rate during sickness absence indefinitely where the employer was already facing financial difficulties.

Considering the nature of the individual mental health condition: occupational health involvement

Every mental health condition will be experienced differently and employees’ needs for adjustments will vary. Employers should be advised not to make assumptions based on previous experiences of a mental health condition or searching online, as this is fertile ground for unconscious bias and stigma to creep in. Line managers should be trained on how to handle conversations about adjustments to ensure they keep an open mind.

Employers should always consult with the employee to identify the most appropriate and effective reasonable adjustments and seek occupational health input at an early stage. The employer in Jandu was criticised for failing to refer the employee to occupational health and not making further enquiries to understand the claimant’s dyslexia and make appropriate adjustments.

However, where the employee refuses an occupational health referral, an employer can clearly only act on limited knowledge. The claimant in Morgan refused occupational health input and all but one of her claims, including failure to make reasonable adjustments, were struck out at tribunal.

Identifying the PCP

The duty to make reasonable adjustments is not infinite and, outside of adjustments to physical features and auxiliary aids, applies to making adjustments to PCPs only. The claim of failure to make reasonable adjustments was not made out in the aforementioned case of Brangwyn because the interactions between the employer and the employee as a whole did not impose a PCP, which caused the employee a substantial disadvantage in the circumstances.

Considering risk of other related claims

Where a failure to make reasonable adjustments issue arises involving a disabled individual, if dealt with poorly, it may lead to other types of legal claims beyond indirect disability discrimination. The development of the initial failure to make reasonable adjustments might result in harassment related to disability, breaches of health and safety obligations, whistleblowing detriment for disclosures made about the alleged discrimination and related health and safety breaches and breaches of mutual trust and confidence.

For example, in the case of Morgan, one single act of harassment related to disability was established due to the employer’s criticism in the disciplinary proceedings that the claimant had been consciously masking her autism.

Data protection and anonymity orders

Employees’ health information is considered ‘special category data’, previously referred to as ‘sensitive personal data’ pre-DPA 2018, which requires more protection.

Employers must be advised to be careful about who the employees’ disability information is disclosed to and how it is processed to comply with data protection legislation. Although direct consent is not required, where possible, employers should be encouraged to allow the individual to guide what is disclosed and to whom.

Should litigation arise, claimants may be advised to apply for restricted reporting orders and/or anonymisation orders to protect their private medical and health information which tips the reputational risk scales more heavily towards the employer.

Conclusion

The law has not changed in that employers continue to have a legal obligation to make reasonable adjustments to support employees with mental health conditions where they fall under the EqA 2010 definition of disability. The case law demonstrates the importance of employers making reasonable adjustments for employees with a wide range of mental health conditions, as failing to do so could result in costly tribunal claims and reputational damage.

Even where a mental health condition may not constitute a disability as defined in the legislation, employers should be advised to take a proactive approach to promoting mental wellbeing in the workplace from an employee relations perspective as well to manage litigation risk. The recent Acas guidance clearly encourages this approach.

This in turn can improve workplace culture, whereby wellbeing becomes more than a box to tick, resulting in increased equality, diversity and inclusion, a more positive and productive workforce and better talent retention and progression.

Céline Winham and Deborah Casale, Irwin Mitchell

This article first appeared in ELA monthly briefing for June 2023