The issue of mental health in the workplace is a hot topic, with the Mental Health Foundation estimating that 70 million work days are lost each year to poor mental health costing employers £33 billion annually. It is expected that more work will be done to tackle the sigma surrounding mental health issues and to encourage employers to invest in improving the mental health of the workforce.
But be aware that under existing law employers have obligations to those with mental health issues which are outlined below.
What mental health covers
Mental health includes our emotional, psychological, and social well-being. Our mental health can affect productivity and interaction with colleagues. Excessive workload, bullying and harassment at work can cause stress which may lead to a mental health condition such as depression or anxiety.
What are an employer’s obligations?
Employers have an obligation under the Equality Act to make reasonable adjustments for staff who suffer from mental health conditions which amount to a “disability”, examples might be depression and bipolar disorder. This is the subject of this article.
Even when an employee does not fall within the definition of “disabled”, employers have a general duty of care and responsibility for employee health and preventing personal injury. Employers also have obligations to carry out risk assessments. This includes effective management of workloads and issues of workplace stress, bullying and harassment. These employer duties will be covered in our next article.
Mental health as a disability
The Equality Act sets out certain protected characteristics of which “disability” is one. A person has a disability if “s/he has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” An employee will have a disability if they have a mental health problem which is long term (i.e. likely to last more than 12 months) and affects their ability to carry out their normal day to day tasks, for example, using a computer, working set times or interacting with other people. Whilst not all cases of mental illness will amount to a disability (e.g. a short period of anxiety or depression will not) the more serious mental health issues certainly will.
The Equality Act prohibits:
- Direct discrimination is where you treat a disabled employee less favourably than you treat an able bodied employee e.g. you pay someone with a mental illness less than someone who does not have a mental illness.
- Indirect discrimination – is where an act, decision or policy has the effect of disadvantaging a disabled employee e.g. the requirement to work full time may be indirectly discriminatory against an employee with serious long term depression unless the employer can objectively justify why the role needs to be carried out full time.
- Harassment – is unwanted conduct related to a disability which has the effect of violating an employee’s dignity or creating a hostile, humiliating or offensive environment for the individual; and
- Victimisation – an employee is protected from being treated less favourably on the grounds that they brought a discrimination claim against their employer.
The requirement not to discriminate or harass applies at all stages of employment covering recruitment, equal treatment of staff during employment and on termination. The legislation protects job applicants, workers and the self employed.
Duty to make reasonable adjustments
In addition to the prohibitions in the Equality Act there is a duty on employers to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage because of:
- a provision, criterion or practice applied by the employer – for example, where there is a provision which requires all staff to start work at 9am it may be a reasonable adjustment to allow an employee who suffers from depression or who is anxious travelling in rush hour to vary their working hours and make a later start to the day or to work from home on occasion;
- the physical features of your premises – it may help an employee suffering from anxiety to work in a quiet room rather than a big open plan office;
A reasonable adjustment should not be too disruptive, costly or impractical for an employer to make. It could include changes to hours, break times or place of work, changes to role or extra support either reducing workload, additional training, via mentoring or referral to professional support services. It may also be appropriate to offer paid or unpaid time off to attend counselling.
Whilst it is a legal requirement to consider making reasonable adjustments for those who are “disabled” it is good practice for employers to consider whether adjustments could help any employee affected by a mental health condition or stress at work. Such adjustments might assist an employee through a short period of illness and assist them to return to full capacity more quickly.
When to make an adjustment
The duty to make reasonable adjustments arises when an employer knows or ought reasonably to have known that an employee has a disability. Employers should aim to create a culture where employees find open discussion possible. Employers may need to take the lead where a health issue is suspected to exist. Employees will need to be assured of confidentiality at all times.
Workplace adjustments must be applied at every stage of employment including interview, induction, training and development and return to work.
An employee can bring a claim for discrimination without needing any period of qualifying service. If a claim is successful, compensation for discrimination is unlimited and can contain an element for loss suffered and also for injury to feelings.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.