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Adjustments for mental health in the workplace | ACAS’s new guidelines

Employment Law

1 in 4 people experience a mental health issue of some kind in their lifetime. This fact only highlights the needs for employers to have a greater understanding of mental health in the workplace so they can best support their employees.

Earlier this year, ACAS (Advisory, Conciliation and Arbitration Service), alongside Affinity Health at Work, published new guidance on reasonable adjustments for mental health at work. In short, it defines what reasonable adjustments are, provides examples of such adjustments, and explains the benefits of making these adjustments for mental health. Furthermore, it gives guidance to employees about requesting any adjustments they feel they need and to employers about responding to those requests. The guide goes on to recommend good business practices for having conversations and reviewing policies and procedures with mental health in mind.

Examples of reasonable adjustments for mental health

Flexible working arrangements

These can either be in the form of working hours such as allowing an employee to work part-time or on flexible hours a week. It could also be about remote or hybrid working, allowing the employee to work from home when they need to.

Case study

  1. The claimant suffered from anxiety and depression and requested for flexible working arrangements. The employer refused and this was held to be a failure to make reasonable adjustments.
  2. The claimant asked to work from home 2 days a week due to their chronic fatigue syndrome. This request was dismissed, and this refusal amounted to a failure to make reasonable adjustments.

Changes to the physical work environment

The workplace can be adjusted by things such as lighting, noise levels, or temperature. The employer could provide a quite space for an individual to work or a space for people to take a few minutes when they need to get away for example.

Case study

  1. The claimant, a teacher, suffered with post-traumatic stress disorder. They asked to teach in a room that had more natural light and ventilation but were refused. The tribunal determined that the employer had failed to make reasonable adjustments by not considering the claimant’s request.

Reallocation of duties or relocation

Employers have the option to reallocate a task to another member of staff that an employee may be struggling with due to their mental health. Additionally, the individuals job responsibilities could be altered to better suit their abilities and be created with their mental health in mind.

Case study

  1. The claimant had a daughter suffering with mental health issues and was then later diagnosed with depression themselves. The claimant requested to be transferred to a location closer to his home with the support of their occupation health report. The employer denied the transfer and dismissed them for poor attendance which was later found to be a failure to make reasonable adjustments.

Training and support

Employees could be offered training or support to help to manage their mental health and encourage a wider conversation to be had about mental health in the workplace.

For example:

  • Access to a counsellor
  • Employee assistance programme
  • Mental health awareness training
  • Mental health first aiders
  • Unconscious bias training
  • Appointing champions for mental health and disabilities

Work expectations and pay rates

This may include reducing an employee’s workload or adapting their targets to account for their mental health needs. It could be moving deadlines for completing tasks or extending a period of full sick pay or maintaining existing pay rates upon reallocation to another role. These changes can be done for a trail period to ensure that both employee and employer are getting what they need from one another.

Case study

  1. An employer was found to have failed to make reasonable adjustments by not extending the time period in which their employee was able to appeal against their dismissal.

The issues with making reasonable adjustments

Identifying the need for adjustments

The legal obligation to make the necessary adjustments fall on the shoulders of the employer. However, it is expected that the employee communicates their mental health condition and any issues they are having at work to the employer in a clear and identifiable way for the duty to make reasonable adjustments to arise.

The needs of the business vs the needs of the individual

An assessment can be carried out by the employer to see whether the adjustments required negatively impact the business’s overall operations or the work of other members of staff. These reasonings are considered case by case by the tribunal and the outcome will depend entirely on the circumstances of the matter.

The nature of the mental health condition

People experience different mental health conditions in a different way to others meaning that adjustments needed will vary from case to case. Employers are advised not to make assumptions of the adjustments an employee might need based on previous experiences or online searches. This can breed unconscious bias and stigmas in the workplace. Managers should be given training on how to handle conversations about mental health and adjustments with an open mind.

The employee should be consulted with to identify the most appropriate and effective adjustments for both them and the employer. Occupational health input should also be sought at an early stage of the process.

Provision, criterion, or practice (PCP)

The duty of an employer to make reasonable adjustments is not infinite and bar adjustments to physical features and auxiliary aids, only applies to making adjustments to PCP’s.

The risk of other claims

Where a failure to make reasonable adjustments occurs, it may lead to other legal claims if the situation is poorly dealt with. The development of the initial failure might result in harassment related to disability claims, breaches of health and safety obligations, whistleblowing detriments for disclosures made about the alleged discrimination and others.

Data protection and anonymity orders

The health information of any member of staff is considered special category data meaning that it requires more protection. Employers should be careful about who the employee’s disability information is shared with and how it’s processed so that they remain in line with data protection legislations. Although not a requirement, it’s advised that employers should allow the individual to choose what is disclosed and to whom.

How can Hegarty Solicitors help?

If you are an employer facing a claim, or if you want more information in relation to making reasonable adjustments for mental health in the workplace, contact our employment team today.

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