Employers are increasingly aware of the importance of protecting and supporting employees’ mental health in the workplace, and the impact this can have on wellbeing, productivity and retention. On an individual level, supporting an employee with a mental health condition must of course be taken just as seriously as a physical illness would be. And from a legal perspective, the underlying obligations are the same. That said, this guidance recently published by ACAS takes a specific look at mental health related adjustments, and how to handle associated conversations sensitively and supportively.

The legal duty to make reasonable adjustments

Under the Equality Act, employers are under a duty to make adjustments in order to accommodate a disabled person’s needs. This applies whenever a disabled person is placed at a substantial disadvantage by a provision, criterion or practice imposed by the employer or by a physical feature of the employer’s premises. In such cases, the employer has a duty to take reasonable steps to avoid that disadvantage. See here for a more detailed analysis of this duty.

“Disability” is defined in the Equality Act 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. Employers’ obligations to make reasonable adjustments therefore apply equally to employees experiencing mental health conditions as for employees with a physical disability.

Some people might not recognise or consider their mental health condition as a disability, but it's important that employers are aware that, under the Equality Act, it could be. 

The ACAS Guidance – what does it tell us? 

The Guidance contains an abundance of detailed, practical guidance for both employers and employees. In summary:

• Mental (ill)health is personal to the individual; neither recovery nor management of a mental health condition are necessarily linear. This means that adjustments need to be bespoke, regularly reviewed and tweaked according to the employee’s progress.
• There are numerous benefits both to employers and employees of implementing effective reasonable adjustments for mental health. These include helping employees to stay in work while recovering from or managing a mental health condition, reducing recruitment and training costs, decreasing absence and associated costs, and creating a healthy work culture.
• Collaboration is important: potential adjustments should be explored by the employer and employee together. Factors to consider should include working arrangements, the physical working environment, adapting role/responsibilities, working relationships and communication.
• The Guidance offers practical suggestions to help both employers and employees prepare for meetings to discuss reasonable adjustments. Employers are usefully reminded that experiences of mental health may fluctuate and can be difficult to talk about (particularly when under pressure). To ensure support is suited to an employee’s ongoing needs, the employer should put in place follow-up meetings to review the effectiveness of the adjustments and make any further modifications, if necessary.
• Managers have an important role to play in supporting someone experiencing mental health conditions. These kind of discussions can be daunting both for the employee and their manager, but the Guidance suggests helpful ways of talking about adjustments and wellbeing. It also suggests ways to recognise the signs of mental health conditions, and processes to put in place for employees to disclose a mental health condition and receive appropriate support.

   

• The Guidance advises employers to review and revise their existing policies to ensure they are suitable for employees experiencing mental health conditions. A reasonable adjustments policy is recommended, which covers supporting mental health at work.

Why follow ACAS Guidance?

As set out above, the new Guidance is thorough, thoughtful and practical. The framework will assist employers to navigate difficult conversations sensitively and ensure that a broad range of supportive measures are considered.

From a legal perspective, while the Guidance does not have the force of law, both employers and employees would we well advised to follow it.  The numerous examples and recommendations in the Guidance will be a useful benchmark of good practice for tribunals in assessing both whether an employer has acted reasonably and fairly in the circumstances, and also whether reasonable adjustments have been adequately made or considered.

Best practice

Although the duty to make reasonable adjustments is dependent on the employee satisfying the legal definition of disability, the Guidance sensibly cautions against employers viewing this duty narrowly: employers should try to make reasonable adjustments even if the mental health condition or concern is not a disability. Not only might supportive measures be enough to help an individual stay in work and work well, a condition could deteriorate (not least through a lack of support at work) and become a disability under the Act in future. Mental ill health can of course cause employees to be off sick for a prolonged period of time, resulting in a wider impact on their team.

Employers that engage properly with reasonable adjustments, and embed a strong culture of health and wellbeing which is supportive and cares for its employees, will have a more productive, engaged, and loyal workforce. This will help to attract and retain the best talent.

This new ACAS guidance provides a timely opportunity to review how your organisation supports colleagues’ mental health at work, and how confident your line managers are when it comes to handling health concerns in their teams. If you would like to have a conversation about how our training team can support your managers through training around mental health and managing sickness absence, please contact our Head of Training, Lucy Hendley, at Lucy.Hendley@lewissilkin.com. 

Reasonable Adjustments for Mental Health – ACAS guidance available here