April’s Employment Law Digest – New ACAS guidance on reasonable adjustments for mental health

You can view the updated guidance from ACAS by clicking here.

There is no doubt that awareness of, and perceptions towards mental health in the workplace have generally improved in recent years, with an ever-increasing focus on ‘health and wellbeing’. ACAS’ new guidance aims to help employers understand how they can support and ultimately get the most out of employees who are experiencing mental health challenges.

When does an employer have to make ‘reasonable adjustments’?

The legal duty to make reasonable adjustments only applies where an employee (or job applicant) is ‘disabled’ for the purposes of the Equality Act 2010. An employee will be disabled where they have a physical or mental impairment which has a substantial adverse long-term impact on their ability to carry out normal day-to-day activities.

Whether a mental health condition amounts to a disability will depend on the circumstances of each individual case. An individual who has suffered from severe depression for 15 years is reasonably likely to be covered by the Equality Act 2010, whereas an individual suffering from temporary work-related stress in response to an adverse event such as a disciplinary investigation is unlikely to be covered. However, the decision can ultimately only be made by an Employment Judge rather than a doctor.

Nevertheless, ACAS’ guidance rightly highlights that employers should explore making reasonable adjustments even if the threshold of disability under the Equality Act 2010 may not be met. There is clearly a mutual benefit to the employer and the employee in making the work environment as manageable and positive as possible, in order to minimise sickness absence and maximise productivity and quality of work. Mental health initiatives are also increasingly viewed by businesses as an important recruitment and retention tool.

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What are ‘reasonable adjustments’?

Reasonable adjustments can include changes to an employer’s policies and procedures, an employee’s personal working arrangements, the physical working environment or even providing an additional aid such as a standing desk or certain computer software.

ACAS’ guidance gives a number of examples of potential reasonable adjustments which may help an employee with mental health challenges at work, such as:

• Reviewing and amending workload and/or responsibilities
• Agreeing preferred communication styles and strategies
• Permitting working from home
• Providing quieter areas in the workplace to reduce sensory and social demands
• Adjusting sickness absence policies and procedures, for example by extending absence trigger points, providing paid time off to attend medical appointments or offering phased returns to work
• Increased training and supervision

This is far from an exhaustive list and the key principle is to identify the workplace challenges arising from the employee’s mental health problems, and then explore how these challenges may be eradicated or at least reduced.

How to approach discussions

Mental health awareness campaigns regularly focus on breaking down the perceived stigma surrounding mental health to encourage more open dialogue. A significant portion of the guidance deals with how conversations around reasonable adjustments for mental health might be approached and handled.

In most circumstances, the discussion will be initiated by the employee and the guidance reflects this. However, managers should also be prepared to initiate a sensitive conversation with an employee who they identify appears to struggle with mental health issues – for example if there is a change in their behaviour. Employers are more commonly investing in mental health training for management, and many appoint Mental Health First Aiders or use similar initiatives.

Some key suggestions from the guidance include:

• Considering trial periods for adjustments to assess their effectiveness
• Periodic reviews of adjustments to consider whether they should be fine-tuned and/or whether they are still required
• Seeking Occupational Health advice regarding potential adjustments where helpful
• Showing as much flexibility as possible to reflect the reality that all individuals are different and that the impact of mental health challenges will fluctuate over time

If you have any questions about the new ACAS guidelines and any steps you may need to take as an employer, please get in touch with Tom Shears, or another of our expert Employment law solicitors.