The Advisory, Conciliation and Arbitration Service (ACAS) recently published new non-statutory guidance, which can be accessed here, to support UK employers and employees when handling reasonable adjustments for mental health at work. In light of the World Health Organisation reporting that 15% of working-age adults have a mental disorder at any one time, the guidance could provide useful support to employers in navigating the dialogue with their employees sensitively.
It is not news that supporting employees' and workers' mental health in the workplace enables people living with mental health conditions to participate and thrive at work and can increase retention and productivity rates for employers. ACAS's new guidance emphasizes these benefits and aims to provide practical support and guidance on putting in place reasonable adjustments for mental health.
The guidance starts by reminding UK employers of their legal obligations (set out in the Equality Act 2010) in respect of making reasonable adjustments (essentially changes an employer can make to remove or reduce a disadvantage related to someone's disability). The duty applies when someone has a "disability," which is defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.
The ACAS guidance
It is important to note that the ACAS guidance is non-statutory (so does not have legal force) and does not change the law on reasonable adjustments. However, the guidance is intended to be a helpful and practical guide for both employers and employees and encourages employers to go beyond the law to "try to make reasonable adjustments even if the issue is not a disability."
Key points to take away:
- Employers should treat employees with a mental health problem with the same seriousness and care as for employees with a physical illness.
- Mental health issues can occur suddenly (due to a specific event), gradually, can be hidden and can fluctuate over time. Employers and employees, therefore, should work together to agree reasonable adjustments, reviewing them over time to ensure they are working well.
- Examples of reasonable adjustments are
provided and can be a useful starting point in establishing the
most appropriate adjustments to implement. Including:
- Changing someone's role and responsibilities (e.g., reviewing tasks or deadlines, reducing workload or the complexity of someone's work)
- Reviewing working relationships and communication styles (e.g., agreeing to a method of preferred communication with an individual to reduce anxiety)
- Changing the physical working environment (e.g., allowing someone to work from home or relocating someone's workspace to a quieter area)
- Making policy changes (e.g., offering paid time off for someone to attend appointments in work time, or being flexible with "trigger points" for absence)
- Providing additional support (e.g., additional training, coaching or a mentor)
- Employees and employers are encouraged to talk openly and work together to ensure that needs are met. Guidance is given to both employees and employers on how to prepare for meetings to discuss mental health and reasonable adjustments (including potentially getting advice from an occupational health professional), how to have a conversation about mental health and how to agree a plan. It is recommended that reasonable adjustments are agreed with a trial period and monitoring on how they are working (with a particular emphasis on how managers can support this).
- Employers are advised to review their existing policies to ensure they are suitable for employees with mental health problems and to introduce policy that covers reasonable adjustments for mental health if there is not already one in place.
The ACAS guidance emphasizes some of the positive effects of following its recommendations including: retaining employees, reducing recruitment and training costs, reducing absences, ensuring employees are safe and productive at work and creating a healthy work environment with a commitment to good practice. While it does not carry legal force, the guidance is thorough and following it could not only help employers ensure that they are acting fairly and reasonably in following the law but also bring these wider benefits.
*Melani Baines is a paralegal at GQ|Littler.
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