5 September 2024

Employers are increasingly aware of the importance of supporting employees’ mental health. There are often good business reasons for doing this, such as improved retention, attendance and productivity. However, there is also a legal duty to make reasonable adjustments where the individual’s mental health condition causes them to qualify as disabled under the Equality Act 2010. This means that mental health problems need to be taken as seriously as any physical conditions. Employers may be required to make adjustments even when the individual does not consider themselves to be disabled.

Understandably, given the breadth and sensitivity of the topic, managers do not always feel equipped to deal with mental health issues in the workplace. Last year, Acas published their guidance on reasonable adjustments for mental health, which provides some practical advice.

In this article, we highlight employers’ legal responsibilities, give some examples of reasonable adjustments for mental health, and offer a few recommendations.

What are employers’ legal responsibilities?

If the impact of an employee’s, worker’s or job candidate’s mental health condition meets the definition of disability, the employer has a duty to make reasonable adjustments and not to discriminate against the individual in relation to their disability.

Under the Equality Act 2010, an individual has a disability if:

• the individual has a mental or physical impairment;

• the impairment adversely affects their ability to carry out normal day-to-day activities;

• the adverse effect is substantial; and

• the adverse effect is long term.

When considering the effect of the impairment, any medication or treatment (such as therapy) must be disregarded. There is detailed government guidance and case law on all aspects of the definition. However, Acas advises employers to make adjustments even if the individual does not strictly fall within the definition.

Employers are under the duty to make reasonable adjustments unless they “could not reasonably be expected to know” that the individual has a disability. There is no obligation on the individual to disclose disabilities to their employer; employers should therefore be alert for signs that an employee may have a disability.

An employer also has legal responsibilities for their workforce’s mental health under health and safety law and under their duty of care.

Reasonable adjustments for mental health

The duty to make reasonable adjustments can apply to all aspects of the working relationship, from recruitment practices to the consideration of mitigating factors in a decision to dismiss. The aim of a reasonable adjustment is to accommodate an individual’s disability and to keep them in work or get them back to work. 

When considering what could assist an employee, Acas guidance reminds employers to take into account differences between jobs and individuals, as well as fluctuations in an individual’s mental health over time. We strongly recommend consulting the individual about adjustments, although employers should not rely solely on the individual’s suggestions. It may be advisable to obtain independent advice from an occupational health professional.

The employer only has to take steps that are reasonable. We can help you to work out what is reasonable, weighing up factors such as:

• the likelihood that the adjustment will be effective;

• the cost of the adjustment against the cost of recruiting and training a new employee;

• the possible impact on colleagues and the business;

• the resources available to the business, with regard to the size and type of business; and

• the practicability of the proposed adjustment.

Examples of reasonable adjustments for mental health

Examples of potential reasonable adjustments include:

• reallocating duties that an individual finds stressful or triggering;

• allowing paid time off to attend medical appointments or therapy sessions;

• providing a quiet space for a person experiencing anxiety;

• allowing home-working for a person suffering from agoraphobia;

• allowing a higher rate of disability-related absence before triggering steps under an absence management procedure;

• making some allowance for disability-related behaviours or reduced performance;

• providing mentoring, training, or enhanced support from a supervisor; and

• a phased return to work with a carefully managed workload following a disability-related absence.

Tips for employers

Identifying and discussing reasonable adjustments for an individual’s mental health may feel rather daunting for managers. We can help you deal with employees supportively and consistently. Our general recommendations for employers include:

• nurturing an open culture in which individuals feel able to talk to managers about their mental health and managers are receptive to such conversations;

• equipping managers for discussions of mental health with relevant training/resources about relevant conditions (though managers should remain receptive to each individual’s personal experience);

• agreeing with employees what they are happy to share with colleagues, if this is necessary to implement any reasonable adjustments. Any health-related information should be treated as highly confidential;

• where individuals work with different teams or parts of the business, recording any agreed reasonable adjustments in a password-protected ‘passport’ to be shared with other managers (with the individual’s agreement) to ensure the adjustments are seamlessly implemented;

• using trial periods, and regularly reviewing and assessing the impact of any adjustments to ensure they remain beneficial; and

• agreeing a written plan for any adjustments with the individual, including any timescales for implementation and review, and ensuring this is properly implemented.

How we can help

We can support you in complying with your legal obligations to individuals with mental health problems. We can advise on consulting individuals and identifying possible disabilities or adjustments; drafting meeting plans, correspondence and records of any adjustments made; signposting sources of funding and support; and drafting or reviewing your relevant policies to ensure they are compliant.

For further information, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.