Small business blog from Farringford Legal

Opening up to your work colleagues and managers about mental health issues has not always been easy as there’s so much stigma attached to it. Many people are still nervous, scared, or ashamed about revealing something that is so personal to them. Despite this, there’s been an increasing awareness of mental health in the recent years, with more individuals being open to discuss their experience of battling with mental health.  

Common mental health issues which may affect employees in your business may include:

• Stress
• Depression
• Anxiety

Less common ones include:

• Bipolar disorder
• Schizophrenia

According to Champion Health the mental health in the workplace statistics should serve as a warning sign to all employers:

• 52% of employees are experiencing symptoms of depression
• 61% of employees experiencing depression are female
• 33% of employees experiencing depression are aged 25-34
• Only 9% of employees are currently seeking mental health support

What are my obligations as an employer towards mental health?

You may not be aware, but some mental health conditions are considered a disability.

It’s important for employers to take any form of disability, including any mental health condition, seriously. Just as changes would be made for someone who uses a wheelchair, employers must consider and discuss the support that those who have mental health issues might require in the workplace. It is also worth noting however that those mental health conditions covered under the Disability Discrimination Act 1995 will have a particular set of obligations associated with them.

What are the employers’ legal obligations regarding the protection of disabled staff?

If a member of staff has an ongoing mental health issue that would likely be considered a disability, employers must comply with various legal requirements. Employers owe a duty of care to their staff, which means that they must do all they reasonably can to support their staff’s health, safety and wellbeing. This includes protecting staff from disability discrimination, conducting risk assessments and making reasonable adjustments for disabled staff. 

How does a mental health condition count as a disability?

Under the Equality Act 2010, a mental health condition will count as a disability if the following apply:

• it has a significant, adverse and long-term effect on the employee – for example, you can’t concentrate on the task, or it takes longer for them to do so. 
• it lasts at least 12 months or is expected to last longer. 
• it affects their ability to carry out normal day-to-day activities – for example, following work instructions, interacting with people, managing your schedule. 

The law currently considers the effects of an impairment on the individual. For example, those with mild depression with minor effects may not be protected, whereas those with severe depression with significant effects on their daily life are likely to be considered as being disabled. 

What are reasonable adjustments?

Under the Equality Act 2010, employers are under a legal duty to make reasonable adjustments to ensure that individuals with a disability are not facing barriers compared with those who are not disabled. 

Employers only need to make adjustments if it’s reasonable to do so. Whether a request is reasonable would depend on factors such as:

• your disability
• if the changes requested overcomes the disadvantage you and other disabled people experience
• size of the organisation
• cost of making the changes
• if any changes have already been made 

What can employers do?

Employers should consider various ways to remove the barriers disabled individuals face. This could include changing working arrangements, getting someone in for assistance, providing extra or specialised equipment or removing something from the workplace. 

Common examples of reasonable adjustments in the workplace include but not limited to:

• altering working hours for those with chronic conditions so that they can attend their hospital appointments
• providing individual support for those with anxiety disorders
• allowing more time for face-to-face interview
• changing the times when events happen

It’s a good idea for employers to set up a ‘reasonable adjustments passport’ for an employee when they make a reasonable adjustment. This allows the employee to prove that a reasonable adjustment has been made if any new management comes, saving them having to go through the same process again. It also helps both employers and employees to make sure the reasonable adjustment is correct, practical and up-to-date. 

Where reasonable adjustments are made, the employer is responsible for paying everything, not the individual making the request. For small businesses, it’s not always affordable to make the same level of adjustments as big businesses, but many can be simple and cost-free. If the request would cause the organisation to go out of business, employers can turn down the request, but should explore alternative adjustments to help support the individual. 

What happens if employers don’t cooperate with reasonable adjustments?

Under the Equality Act 2010, refusing to cooperate with reasonable adjustments would amount to unlawful discrimination. This means that it’s possible for job applicants or staff to make a claim against you in the Employment Tribunal on grounds of disability discrimination. 

To ensure that employers are fulfilling their legal duty, it’s always a good idea to focus on reasonable adjustments they can make as opposed to trying to figure out if an employee’s condition amounts to a disability. If you’re unsure about whether to make an adjustment for someone with a disability, we recommend that you speak to our team at Farringford Legal. 

Thank you to  Kaoruko Shirasaki for this article.

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