Mental Health Disability and the Employer’s Duty to make Reasonable Adjustments

The Requirement for Reasonable Adjustments

Out of the protected characteristic of disability arises the duty for the employer to make reasonable adjustments. Where employees and workers with a mental health disability are placed at a substantial disadvantage by an employer’s provision, criterion or practice (“PCP”) in comparison with someone who is not disabled, the employer has the duty to make reasonable adjustments to avoid the disadvantage.

It is important to note that the duty arises not just when the employer knows of the disability and that the person is likely to be placed at a substantial disadvantage, but also when the employer should know. Employers should be observant of workers’ behaviours when considering if a disability may be present. They are not, however, expected to be medical experts or hyper intuitive. In Ms C Stott v Ralli Ltd the Tribunal rejected the contention that the claimant’s statement that she was having trouble sleeping should have led the employer to conclude that the claimant was suffering from depression and was disabled.

Example Reasonable Adjustments

The Equality & Human Rights Commission (EHRC) Code sets out several examples of what might be considered a reasonable adjustment. For those with a mental health disability, these may include:

• Transferring the worker to a suitable alternative post. This is likely only where no reasonable adjustment would enable the worker to continue doing the current job.
• Altering the worker’s hours of work or training. This could be as simple as offering a phased return to work with a gradual build-up of hours or offering flexible work hours.
• Allowing more time off work to enable the person to attend treatment for their disability. This could also include allowing a period of disability leave – then planning a phased return to work.
• Modifying disciplinary or grievance procedures, for example by allowing the worker to have a friend or support worker act as an advocate at meetings with the employer about a grievance. Careful consideration should be given to how the content and tone of the meeting could come across to the worker given their disability – the goal is not to disadvantage or patronise the worker.
• Providing supervision or other support. This could include providing a support worker or arranging help from a colleague in certain situations where it would be useful for the worker.

Employers are often unsure what adjustments are reasonable for them to make. In the recent case of Q v L the Employment Appeal Tribunal set aside the Employment Tribunal’s finding that an employer had failed to make reasonable adjustments for a claimant with Tourette’s syndrome when the employer failed to reduce the claimant’s workload. The Employment Appeal Tribunal found that the Tribunal had failed to consider whether the adjustments were reasonable, balancing redressing the disadvantage related to the claimant’s disability with the reasonable needs of the employer. The Tribunal did not make findings on the practicalities of reducing the claimant’s workload, for example if the employee’s workload was reduced, which tasks could be removed and how would those tasks be performed.

The outcome of this case reinforces that the reasonableness of adjustments will always be a balancing act between adjustments for the employee but also the needs of the employer.

Nevertheless, World Mental Health Day presents a great opportunity to open (or continue) dialogue with employees on their mental health and how it affects their work.

[1] UK Government ‘Thriving at Work: The Stevenson/Farmer review of mental health and employers’ Oct 2017

(This article was written by our Employment Trainee Sylvia Mueller.)