Oct 24

ACAS, mental health and reasonable adjustments: what employers need to know

Written by Harjeet Nangla
Senior Associate

DDI: 01423 726610
E: harjeet.nangla@raworths.co.uk

Employers are increasingly aware of the importance of supporting employees’ mental health for many reasons, including improved retention, attendance and productivity. Underpinning this is a legal duty to make reasonable adjustments where the individual’s mental health condition is a disability under the Equality Act 2010.

Mental health problems need to be taken as seriously as any physical conditions. Employers may be expected to make adjustments even when the individual does not consider themselves to be disabled

Harjeet Nangla, a Senior Associate in the employment team with Raworths, looks at this further.

Understandably, managers may have concerns about privacy or not being equipped for dealing with mental health issues in the workplace. Last year, Acas published their guidance on reasonable adjustments for mental health, which provides practical advice on the topic.

Harjeet highlights employers’ legal responsibilities, gives examples of reasonable adjustments for mental health, and offers a few tips for employers.

What are employers’ legal responsibilities?

If the impact of the mental health of an employee, worker or job candidate meets the definition of disability, the employer has a duty to make reasonable adjustments and to not discriminate against them in relation to their disability.

Employers can be expected to make reasonable adjustments unless (as the Equality Act puts it) they ‘could not reasonably be expected to know’ that the individual has a disability.

There is no obligation on the individual to disclose to you that they may have a disability, so this means that employers should be alert for signs that the employee has a disability.

Employers also have other legal responsibilities for the workforce’s mental health under health and safety law and their duty of care.

Understanding the Equality Act – the definition of disability

Meeting the definition of disability for social security benefits does not mean that the individual meets the definition under the Equality Act, which states that:

• the individual has a mental or physical impairment;
• the impairment affects their ability to carry out normal day-to-day activities;
• the adverse effect is substantial; and
• the adverse effect is long term.

When considering the effect of the impairment, any medication or treatment (such as therapy) must be disregarded.

Reasonable adjustments for mental health

The duty to make reasonable adjustments can apply to all aspects of the working relationship, from the way recruitment is run, to considering mitigating factors in a decision to dismiss. The aim of reasonable adjustments is to accommodate an individual’s disability and to keep them in work or get them back to work.

When considering what could assist an employee, Acas guidance reminds employers to take into account differences between jobs and individuals and fluctuations in an individual’s mental health over time. We strongly recommend consulting the individual about adjustments, although employers should not rely solely on the individual’s suggestions. It may be advisable to obtain independent advice from an occupational health professional.

The employer only has to take steps that are reasonable. We can help you to work out what is reasonable, weighing up factors such as the:

• likelihood that the adjustment will be effective;
• cost, as appropriate, weighed against the cost of recruiting and training a new employee;
• impact on colleagues and the business;
• resources available to the business and the size and type of business; and
• the practicability of the proposed adjustment.

Tips for employers

Addressing reasonable adjustments for an individual’s mental health may feel daunting to managers. We can help you deal with employees supportively and sensitively and prepare for meetings. Our general tips for employers include:

• having an open culture where individuals feel able to talk to managers about their mental health and managers feel confident having such conversations;
• supporting managers to foster this culture and help them to prepare for meetings to discuss an individual’s mental health by finding out more about the condition, while keeping an open mind about the individual’s personal experience;
• agreeing with the employee what information they are happy to share with colleagues, if this is necessary to implement any reasonable adjustments. Any health-related information should be treated as highly confidential;
• for individuals who work with different teams or parts of the business, recording adjustments in a ‘passport’ to be shared with other managers (with the individual’s agreement) to ensure the adjustments are seamlessly implemented;
• using trial periods and regularly reviewing and assessing the impact of any adjustments, as these are important to getting adjustments right and ensuring they remain beneficial; and
• agreeing with the individual and writing down the plan for adjustments, timescales and the review date, and then ensuring this is properly implemented.

How Raworths can help

We can support you to create an inclusive and supportive workplace for individuals with mental health problems. This includes advising on steps you can take to identifying disabilities and working out reasonable adjustments; drafting meeting plans, correspondence and recording the plan for adjustments; and reviewing your policies to ensure considerations about reasonable adjustments are built in.

For further information, please contact Harjeet Nangla in the employment team on 01423 566666 or email harjeet.nangla@raworths.co.uk. Raworths is based in Harrogate, North Yorkshire.

Published on 4 October 2024

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.