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In this article, Minal Backhouse, MD, and Head of Labor Law at Backhouse Solicitors, looks at mental disabilities and how employers treat affected workers
The Gender Equality Act 2010 makes employers responsible for promoting a fair and equal workplace. This means that they cannot discriminate against current or potential employees because of a disability.
Define mental disability
Disability under the Equal Opportunities Act has a specific legal meaning that differs from general usage. The law provides that an employee who has a physical or mental impairment that has a significant, negative and long-term effect on his ability to carry out normal everyday activities is recognized as disabled under the law.
While this definition appears to be relatively broad, when looking at mental health disability the focus is on the impact of any mental health problem. For example, when considering whether anxiety is a disability, a decision must be made whether the intellectual impairment:
- Has more than a minor impact on daily activities; and
- Whether it took or is likely to take at least twelve months
This would be judged on a case-by-case basis by a labor court, but it is by no means as straightforward as it may seem. In a recent case, a tribunal ruled that an employee was not disabled because his or her depression (caused by work-related stress) had not lasted a full 12 months. This was challenged and the Employment Appeal Tribunal overturned the decision on the grounds that it was wrong to assume that the depression would end if the employee were fired from work. Indeed, the Tribunal should have assessed whether the impairment could recur in the future and should therefore take a total of twelve months.
The Equal Opportunities Act 2010 obliges employers to make appropriate adjustments for employees with disabilities. Reasonable adjustments require employers to assess and adjust the workplace so that their disabled workers can reasonably stay at work or return to work when they are away. In doing so, employers must also consider whether there is a provision, criterion or practice (PCP) that significantly disadvantages a disabled person compared to non-disabled people and make appropriate changes. You must also consider whether a physical characteristic is causing a significant disadvantage or whether assistance should be provided.
Failure to make appropriate adjustments is prohibited under the Equal Opportunities Act and may result in an employee filing a discrimination complaint with the Employment Tribunal. This is serious for employers as discrimination claims do not require a minimum length of service and the premiums are not capped.
The assessment process is likely to be more difficult for an intellectual disability than it is for a physical disability, as intellectual impairments are often invisible to an outsider. Employees can also find it difficult to verbalize their condition or related needs, as the perceived stigma is often linked to mental illness.
Appropriate adjustments for someone with a mental illness can include:
- Making adjustments to rooms, e.g. B. Reducing the noise level
- Assigning some of the duties of the disabled person to another person
- Assign a disabled person to another job or allow them to work from home
- Change of working or training hours of a disabled person
This is not an exhaustive list and the specific factors will vary from job to job.
Employers are only expected to make adjustments that are reasonably feasible and this needs to be assessed on a case-by-case basis. Employers may consider the financial impact on the company and the extent to which the adjustments may affect other employees and business operations. Employers can sometimes receive government funding to make appropriate adjustments under the Access to Work Program and the Technology Fund. This should be taken into account before declining reasonable adjustments for cost reasons.
As an employer, how can you ensure that you have made the appropriate adjustments for a disability that you may not be fully aware of? Unfortunately there is no simple answer. While it is clear that you always have a duty when your employee informs you directly about their disability, that duty extends to “constructive knowledge” as well. Then you should reasonably know or do reasonable research to find out.
Case law on this issue has focused on whether employers have taken reasonable steps to determine whether an employee has a disability. Good practice begins with policies of equal opportunities and non-discrimination and the promotion of open and honest dialogue in the workplace. Collecting and monitoring diversity data can also be helpful and promote good communication, but it can also promote a good mix of people and skills in your teams.
The courts have made it clear that, as an employer, you are under no obligation to make reasonable adjustments if an employee is continuously hiding their disability to accommodate something you are unaware of. You are not expected to repeatedly make requests and jump through administrative frameworks to no avail.
Mental disabilities are becoming more common in the workplace and it is clear by law that employers must do their best to help affected workers do their jobs effectively. Appropriate guidelines and a supportive culture are a good place to start, but there is no one-size-fits-all solution that works for every scenario. Given the possible penalties for failure, we always recommend seeking professional advice whenever a representative comes to you or when you suspect there is a problem. This gives you and your company the best chance of finding a solution that works for everyone involved.
MD and Head of Labor Law
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