An estimated 17 million working days were lost due to work-related stress, depression or anxiety in 2021/22 according to The Health and Safety Executive (HSE), while 1.8 million workers in the UK suffer a work-related illness and over half of all working days are lost due to work-related ill health. But how can employers best navigate the law on mental health and wider ‘hidden’ disabilities in the workplace to ensure their employees are understood, while at the same time not risk unnecessary working days being lost?
These high numbers can have a significant impact on employers of all sizes and sectors, and affect employee morale, employee turnover and the productivity of the workforce. For these reasons, employers need to understand when a condition may be a disability, the legal obligations flowing from that, and what they can do to support their staff – whilst also protecting themselves from grievances and litigation.
What is a disability – including ‘hidden’ disabilities
A disability is defined under the Equality Act 2010 as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
Mental health conditions such as depression, anxiety, chronic fatigue syndrome, OCD, PTSD and other ‘hidden’ disabilities can be disabilities for these legal purposes provided they fall within the scope of this definition. This means that an employer needs to identify the condition in question whether from information from the employee themselves, or on fit to work notes from their GP or other medical documentation. It is not enough simply for the condition to be a mental impairment; it must also meet the second part of the definition, namely that it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. For example, menopause in itself is not a disability but the employee could be experiencing symptoms which individually could be disabilities such as anxiety or fatigue.
For these purposes, long term means a condition which has lasted for 12 months or more, or is likely to last for 12 months or more. The effect must be substantial and adversely effect their ability to carry out normal day-to-day activities. When considering this element, employers must remember that activities do not just mean the individual’s work tasks, but cover a far wider variety of activities such as going shopping or playing with their children.
If a condition does not meet the requirements of the Equality Act definition, it is not a disability for legal purposes. Employers should bear in mind that cancer, HIV and multiple sclerosis are deemed to be disabilities for legal purposes upon commencement of the condition.
In many cases, an employer may not have sufficient information to ascertain whether a condition is or could be a disability, particularly if the individual has provided very brief information or the question has only arisen after the employer identifies that a health condition is affecting performance or attendance.
This means that the employer’s first step will be to gather as much relevant medical information as possible. In some cases, employees will be able and willing to provide reports from their consultants, but often employers will find it more useful and reliable to obtain an occupational health report or report from a medical specialist. Such reports are a useful way of asking the occupational health examiner specific questions about the condition, the prognosis, the likely duration and how they can support the employee in their work.
Even if such a report states that the condition is not, in their opinion, a disability for legal purposes, employers should still apply their own judgment and, ideally, record the rationale for deciding whether or not the condition is a disability. The next step after collating and considering the medical information is to meet with the employee to discuss the report(s) and how the employer can support the employee with their work.
When depression or other condition does become a disability
If an employer believes the individual’s condition is a disability for legal purposes, they need to ensure that the individual is not subjected to less favourable treatment because of it, whether that is by treating them less favourably in comparison to another employee who does not have the disability, or by applying a provision, criterion or practice which means the individual and any other staff with the same condition are disadvantaged in comparison to colleagues without the condition.
These types of discrimination are called direct discrimination and indirect discrimination respectively and are unlawful under the Equality Act Other forms of discrimination include harassment, whereby a hostile or intimidating environment exists, for example, by way of comments about those with disabilities.
It is worth remembering too that treating an employee unfavourably because of the disability of a person associated with them such as a child is unlawful, as will treating them less favourably because of something arising from their disability, for example, increased levels of sickness absence. This is not to say employers may not instigate disciplinary or capability processes in respect of employees with a disability where there are ongoing performance concerns, particularly where those continue despite the implementation of reasonable adjustments.
The Equality Act also provides that an employer is required to take such steps as is reasonable to have to take to ensure that disabled people can access and progress in employment. In relation to mental health disabilities, this means where an employer’s provision, criterion or practice puts a disabled employee at a substantial disadvantage in relation to something in comparison with an employee who is not disabled, the employer should take such steps as is reasonable to avoid the disadvantage.
Support and services employers should consider
Reasonable adjustments are any form of assistance or steps taken to support the employee either return to work or perform their work. They can vary and will depend on the condition, and its effect on the employee. Sometimes adjustments are easy to identify and the employee may have suggestions, but the employer should also apply their minds to the question. For example, a reasonable adjustment for an employee with autism may be to fix their hours and permitting them to work either in a quieter part of the office, or to wear noise-cancelling headphones.
For those with depression, reasonable adjustments could potentially be to permit working from home more frequently or to flexible working hours. Advice on adjustments can also be obtained from the occupational health examiner, specialist charities such as MIND as well as internal or industry support organisations. The government’s Access to Work scheme may also be a good resource for both employers and employees. It must be remembered however that this duty is limited to reasonable adjustments only.
An employer is not obliged to make all the adjustments suggested if these are not reasonable given its resources, size and nature of the work being performed. For example, it may not be reasonable for a smaller organisation with limited finances to create a brand new role for an employee with a disability, or to appoint a new employee to share the individual’s workload with the attendant costs of recruitment and training.
If an employee’s performance and/or attendance at work does not improve despite reasonable adjustments being made, employers are permitted legally to manage their performance and potentially, resulting in a formal disciplinary or capability process and dismissal. Such dismissals can be fair but it is strongly recommended that a paper trail is kept to show the rationale for each decision and the process which was followed.
Failure to comply with these legal obligations can negatively affect staff morale and result in higher levels of sickness absence, grievances and potentially, litigation. If a claim is brought in the employment tribunal, successful claims for discriminatory treatment can result in compensation uncapped. It should be remembered that an employee can bring a claim for discriminatory treatment whilst still employed.
The increased recognition within employers and society as a whole regarding mental health conditions is a positive thing and can encourage employees to inform their managers of such conditions. However, not all employees wish to disclose mental health conditions for fear that they may be treated differently or viewed negatively internally. This means that employers need to adopt an internal culture whereby employees feel comfortable informing their managers and HR teams about health conditions, but also that managers are trained to identify situations where a mental health condition could be at play and the process identified above needs to be triggered.
Employers should ensure that managers are trained on how to support and manage employees with mental health conditions, and that they know the internal processes relating to those, including return to work meetings after sickness absence and the steps to take after a condition is identified.
Maria advises on a wide range of HR and employment-related matters including executive service agreements, disciplinary and grievance issues, board level disputes, performance management, discrimination, restrictive covenants, TUPE and restructuring exercises. She also advises on contentious matters such as employment tribunal claims, discrimination, bonus and contract disputes, and unfair dismissal as well as outsourcing and TUPE transfers.