Theresa May made mental health one of her key policy issues when she became Prime Minister, and it was supposed to be a key part of her relaunch after the snap election too.
But has the buck been passed to employers to sort out mental health in the workplace as opposed to within the NHS? Has the Equality Act gone far enough to protect those in need of its protection or has it used its power to enable the government to stealth its redirection of mental health as it shifts responsibility from the NHS to the employer.
Has anyone asked employers if they feel qualified to make decisions surrounding mental health for their employees, the answer has to be a resounding No, but legislation now makes it a duty that has to be fulfilled.
It is fair to say that most employers want to help their employee’s mental wellbeing and will go above and beyond the governmental guidelines once an employee seeks help. Overcoming the hurls faced by employers to get to this point is, without doubt, a waking nightmare , legislation have sent them down a road that has more peaks and troughs than Mount Everest.
Disability discrimination legislation is a legal minefield to be approached with fear and trepidation and rightly so as failure to get it rights can result in costly disability discriminations tribunals. This can neither be helpful to the employer or employee. Never before has keeping your business on the right side of the law been more important and MENTAL HEALTH SOLUTIONS IN BUSINESS such a high priority, both, on the Prime ministers’ agenda and business owners in the UK. Is it time to perhaps argue that the Equality Act may be having an adverse effect against the people it was designed to help in the first place the employees whilst making life so very difficult for employers.
When we consider statistics tell us that 1 in 4 people suffer with mental health issues in the UK, and in a country where in 2017, there were 5.7 million private businesses in the UK and 32.15 million people in work, that is a lot of people with mental health issues already in the workplace.
The employer’s duty to make” reasonable adjustments” is at the heart of disability discrimination law.
The modern-day employer has certainly stepped up their game when it comes to the welfare of employees, however when the duty to do so comes from a government that cannot get its own NHS working, is it the easy option to make it the employers duty to deal with mental health in the work environment? After all for the employer to defend itself in a tribunal case, they must show that they have done all they can to help make “reasonable adjustment” within working practices. This can include at the employers cost private counseling and treatments alongside “reasonable adjustments”.
Having a robust mental health policy in place is now a given and to not have one is unforgivable and may lead directly to court with no mercy shown. Regardless of how large or small a business is, it would be advantageous to have a mental health policy in place, but, even the implementation of such a policy will do little to prevent an employer being taken to a tribunal. Going to a tribunal is now a fundamental employee right, and since the supreme court has ruled employment tribunal fees are unlawful, the pathway for employees directly to the tribunal doors is largely uninhibited by finance as it should be.( employees have no financial commitment making it far easier to instigate a tribunal .)
The road to successfully helping employees to open up about their mental health issues is tricky and dangerous and often sees the best laid mental health policies scuppered. This is not the employees fault nor is it always the employers fault. Successful education of employers, to deal with their approach to mental health solutions in the workplace is an area which needs stricter and clearer black and white guidelines so that the result is a workplace where the employer and the employee understand what is expected of them.
The equality act does little to encourage that at all, it fact it promotes and acts against its own best advice and from the outset sets disability discrimination up as a separate set of rules to follow, leaving the employer in a purgatory, they cannot go forward nor can they go back.
NO QUESTIONS ASKED!
The journey for the employer starts at the recruitment process and continues for the duration of an employee’s employment until an exit comes about. The equality act section 60 dictates no health questions can be asked prior to job offers being awarded. An employer cannot ask questions about whether any “reasonable adjustments” need to be made to carry out the job itself until after a job offer has been made. Whilst the reasons as to why employers cannot do this have been much publicised, the rules in themselves are excruciatingly frustrating to follow, there has to be a better way to deal with it in a more common sense way than by the restrictive legislation in section 60 of the Equality Act. Its almost a chicken and egg situation for both the employee and employer, if the employer cannot ask the questions the employee might not feel they can voice any questions they may have about their own mental health disabilities and so we meet the impasse whereby the employee can also not decide if they should or can work for the company.
Except in very restricted circumstances or for very restricted purposes, Employers are not allowed to ask any job applicant about their health or any disability until the person has been:
- Offered a job either outright or on a conditional basis, or
- Included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn’t want to recruit separately for each one).
This includes asking such questions as part of the application process or during an interview. It also includes sending them a questionnaire about their health for them to fill in before a job is offered them a job. Questions relating to previous sickness absence count as questions that relate to health or disability.
No-one else can ask these questions on an employer ’s behalf either. Employers cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances.
The point of stopping employers asking questions about health or disability is to make sure that all job applicants are looked at properly to see if they can do the job in question, and not ruled out just because of issues related to or arising from their health or disability.
Questions can be asked once a job offer has been made or a potential candidate is to be included in a group of successful candidates. At that stage, an employer could ask questions to make sure that someone’s health or disability would not prevent them from doing the job. Consideration would need to be given as to whether there are reasonable adjustments that would enable them to do the job if the answers indicated they would struggle. Rescinding the job offer is absolutely not an option for the employer at that point.
While the UK employer will meet and adapt to all kinds of legislation with good spirit, is it unfair to expect them to be able to readily adjust to a person with a minor or major disability when they have no training to do so. How can the employer establish when a disability relating to mental health issues moves from day to day stress to something that is causing concern and needs a qualified counsellor or medical profession to deal with it. When reasonable adjustments require the skill sets of the employer to stretch to adapting to a person with a serious diagnosed or undiagnosed mental health condition can we honestly still believe in the Equality Act as being a paragon of virtue in favour of protecting the employee.
Is it reasonable for employers to have to work to a set of grey guideline that even the most qualified counsellor or psychologists would err on the side of caution with when diagnosing serious and progressive mental health issues regardless as to whether it is new or has been part of the person for years. Psychologists and counsellors will have had years of dedicated training, unlike an employer who may only have had a few hours of training at best. Not all employers have access to occupational health departments or human resources and must, therefore, make big decisions for their selves.
Mental illness is far too often a stealth illness that the employee keeps invisible and hidden from the employer. Mental health stigma or the fear of being overlooked for a promotion or a job offer frightens the employee enough to not voluntarily disclose this information. Yet industrial tribunal claims are on the increase and the biggest rise in claims lies in the rise in disability claims relating to mental health issues. The equality act clearly says that an Employer can be considered in breach of discrimination laws against an employee if they should have known or should have reasonable know that an employee needed or needs ongoing help, but how can employers do this when they are not medically trained and guidelines are blurred and grey, Employers are not minded readers and certainly not doctors or counsellors.
Employers can do so much to help their workforce but they are not the National Health Service, and therefore if a colleague isn’t getting the treatment they desperately need, they’re unlikely to have much of a chance of managing their mental health condition well enough to either be able to join the workplace or stay in the workplace without further adverse effects on their health and this is of particular importance especially if the employee is returning to work after a period of absence.
Below is a list of frequently asked questions with answers, that Mental Health Solutions in Business part of the TOSPS group gets asked from the millions of clients who their information is available too.
Read the questions relating to section 20 -21 of the Equality act and then pit, these questions against the guidelines of section 60 of the same act and the real picture of the complexities begin to emerge.
What is the Equality Act 2010?
The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations.
Who does the Equality Act apply to?
The size of your business does not matter. It does not matter if you are set up as a sole trader, a partnership, a limited company or any other legal structure.
Equality law affects everyone responsible for running your business or who might do something on its behalf, including staff if you have them. It does not matter whether you give the service for free (for example, giving someone information about your paid-for services) or if you charge for it.
What legislation has the Equality Act 2010 replaced?
The Act simplifies, strengthens and harmonises the current legislation to provide Britain with a new discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
The nine main pieces of legislation that have merged are:
- the Equal Pay Act 1970
- the Sex Discrimination Act 1975
- the Race Relations Act 1976
- the Disability Discrimination Act 1995
- the Employment Equality (Religion or Belief) Regulations 2003
- the Employment Equality (Sexual Orientation) Regulations 2003
- the Employment Equality (Age) Regulations 2006
- the Equality Act 2006, Part 2
- the Equality Act (Sexual Orientation) Regulations 2007
Does the Equality Act 2010 change frequently?
The framework remains the same however various areas are clarified and updated frequently.
What is the definition of disability under the Equality Act 2010?
The general definition of disability for the purposes of the Act is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
The Act defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. Substantial is defined as more than minor or trivial.
Some people are deemed to be disabled for the purposes of the Act. For example, people with cancer, HIV and multiple sclerosis are protected effectively from the point of diagnosis.
When does the reasonable adjustment duty apply?
The duty to make reasonable adjustments arises in three situations:
Where a provision, criterion, practice, physical feature of premises, or, where the lack of an auxiliary aid, places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable to take in all the circumstances to avoid that disadvantage – in other words, the employer has to make a ‘reasonable adjustment’.
What areas are covered by “Reasonable Adjustment”?
Age; Disability; Gender reassignment; Marriage and civil partnership; Pregnancy and maternity; Race; Religion or belief; Sex (gender); and Sexual orientation.
What types of discrimination are there?
There a 4 different kinds of discrimination:
What might happen if I don’t make a reasonable adjustment when requested to do so?
If you fail to make a reasonable adjustment when you are under a duty to do so, the Equality Act 2010 treats that as discrimination. This means you could become liable to pay damages were a successful claim to be brought in the Employment Tribunal.
What about when I am recruiting new employees, can I ask questions about their Disability?
Some application processes may involve assessment tests or interviews. These processes should not unreasonably disadvantage disabled people. Section 60 of the Equality Act is particularly important as regards what you can and can’t ask about the disability of an applicant when recruiting:
You can ask questions about disability at an early stage in the application process, so that you can establish whether an applicant will be able to comply with a requirement to undergo an assessment test, or to establish whether you must make reasonable adjustments for an applicant in relation to an assessment. For example, if you require applicants to sit an assessment on a desktop computer you can ask if they are able to do that or whether they require any auxiliary aids to do so (if they can be reasonably provided).
You can ask questions about whether the applicant will be able to carry out functions that are intrinsic to the job (having made any reasonable adjustments), for example, whether an applicant has the necessary physical capabilities or physical fitness to do the job, or whether their health meets certain standards for legitimate safety reasons.
You can also ask questions about disability in other limited situations, for example, for legitimate monitoring of the diversity of job applicants or if you need someone with a specific disability to do the job.
But aside from those circumstances, you can’t ask questions about the health of an applicant before offering him or her the job.
That said, it is not unlawful for you to offer an applicant a job that is conditional upon him or her passing an occupational health check. In this situation, if the results are that the successful candidate has a disability that affects his or her ability to do the job, the question will then be whether a reasonable adjustment can be made to deal with that. If a reasonable adjustment cannot be made, it would then be legitimate to withdraw the job offer on the grounds that the applicant has not met the required condition.
Does a disabled person need to make clear what adjustment I need to make?
In a situation where you may be under an obligation to make a reasonable adjustment, you and the disabled person obviously need to discuss their circumstances so that you can establish what is needed. However, the question of what is a reasonable adjustment is an objective one. It does not mean you must comply with every requirement asked of you by the disabled person. The issue will be what you can reasonably do to avoid any disadvantage entailed by his or her disability. For example, a disabled employee might request that you build a special ramp for wheelchair access to your offices. Having considered this you might decide it to be unfeasible in cost and practical terms to make structural alterations to the building, but you might decide that you can have a temporary ramp available and someone ready to assist with entry and exit to the building. In doing so you would have complied with the law because you provided a workable solution that is reasonable under the circumstances. If it is clear that there isn’t an adjustment that can reasonably be made to avoid a disadvantage, then you can lawfully decline the request.
What if I can’t afford to make a particular reasonable adjustment?
You are only required to make adjustments that are reasonable in all the circumstances.
Factors such as the cost and practicability of making an adjustment and the resources available to you may be taken into account in deciding what is reasonable. Ultimately, it is for an Employment Tribunal to decide, in the event of a claim of alleged unlawful disability discrimination, what adjustment should be made for a particular disabled employee, and whether you were correct to decline to make an adjustment on grounds of practicality or cost.
What if I don’t know my employee, or the person I am recruiting, has a disability?
You are not subject to the reasonable adjustment duty if you do not know, and could not reasonably be expected to know, that an individual has a disability. However, once the disability has been disclosed to you as an employer you have a duty to look at what reasonable adjustments might be implemented.
Do I have to make my premises disable friendly even if I am not thinking of recruitment?
The reasonable adjustment duty on an employer is not ‘anticipatory’. This means that you are not expected to provide a range of adjustments to your premises in anticipation that one day you might employ a person with a specific disability. However, the built environment of newer premises will have been constructed with some of the needs of disabled people in mind.
Does the duty to make reasonable adjustments apply to a disabled individual or to disabled people generally?
In the case of employers, whether a duty arises will depend on the circumstances of each individual case. There is no duty owed to disabled people in general in an employment context.
What if I get taken to a Tribunal over a reasonable adjustment?
A job applicant or employee who believes they have been unlawfully discriminated against because of disability can lodge their claim with an Employment Tribunal, usually within three months of the alleged act of discrimination taking place.
The Tribunal will hear evidence from both the disabled person and from the employer.
If you find yourself in this situation, you would have the opportunity to explain why you did not think it was reasonable to make an adjustment for the disabled person. For example, your defense might be that you did not have the financial resources to pay the cost of a particular adjustment, or because you did not think that an adjustment would actually enable the disabled person to do the job in question.
A decision is made in the light of the particular circumstances of each disabled person and each employer. To enter a tribunal when you have not sought to do anything at all would be a breach as you are required by your duty to also seek out all alternatives.
Can I fire someone for misconduct if they have a mental health problem or disability that’s affecting other staff?
Employers may have to carry out a difficult balancing act where the behavior of an employee with a mental health issue starts to have an impact on other staff. The courts sometimes place a high threshold on how people with serious mental illnesses should be treated in the workplace.
A decision last year that involved an employee who was suffering from paranoid schizophrenia is a case in point. The individual was on medication when he returned to work, but subsequently (in accordance with his doctor’s advice) stopped taking it. Having stopped taking his drugs, his symptoms returned and he sexually assaulted two female colleagues. Unsurprisingly, the employer decided that the employee was guilty of gross misconduct and dismissed him. However, the court decided that the dismissal was unfair because the employer had not considered whether the employee, given his mental illness, was culpable for his actions.
None of this means that employers cannot dismiss employees who physically assault others, but it does show that if employers are aware of a serious mental health issue in one of their staff they should proceed with care.
One particular area of risk for employers is employees who have had a breakdown that required psychiatric treatment. If the employer is aware of this there is a chance that the individual is treated as ‘damaged goods’, and therefore there is a significant risk that they will be discriminated against on their return.
Alternatively, if their working environment causes them to have a second breakdown, the employer can find itself at the end of a personal injury claim with an employee saying that they cannot work again and seeking a high sum in damages. While not common these circumstances do crop up, particularly in high-pressure environments such as investment banking.
What is an employer’s duty of care?
Employers have a duty of care to their employees, which means that they should take all steps which are reasonably possible to ensure their health, safety and wellbeing. Demonstrating concern for the physical and mental health of your workers.
Legally, employers must abide by relevant health & safety and employment law, as well as the common law duty of care. They also have a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury, and must fulfill their responsibilities with regard to personal injury and negligence claims.
Requirements under an employer’s duty of care are wide-ranging and may manifest themselves in many different ways, such as:
- Clearly defining jobs and undertaking risk assessments
- Ensuring a safe work environment
- Providing adequate training and feedback on performance
- Ensuring that staff do not work excessive hours
- Providing areas for rest and relaxation
- Protecting staff from bullying or harassment, either from colleagues or third parties
- Protecting staff from discrimination
- Providing communication channels for employees to raise concerns
- Consulting employees on issues which concern them.
- An employer can be deemed to have breached their duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm. Employees also have responsibilities for their health and wellbeing at work – for example, they are entitled by law to refuse to undertake work that isn’t safe without fear of disciplinary action.
- In addition to statutory health and safety duties, employers are under a general obligation to take reasonable care for the health and safety of employees in the workplace. This means that they have a duty towards people who may have mental health issues, and also towards other employees (if there is a risk of a staff member with a mental health issue doing harm to others).
- They also have a duty not to discriminate because of a person’s disability. It is often (but not always) the case that serious mental health issues will constitute a disability. This will often mean making reasonable adjustments to try to support those with mental ill-health.
Examples of Section 60 breaches and compliance
In the following section, there are examples to illustrate how Section 60 is intended to work in practice.
Question: An employer’s standard job application form for all jobs contains a section requiring job applicants to reveal information about any health issues and the number of days they have had off because of ill health in the last two years. Is this lawful?
Answer: This section of the form is in breach of Section 60 because the questions clearly relate to health (and possibly disability) and this general health information is not necessary under one of the defined exceptions.
Question: A recruitment agency acting for a large employer has been asked to select a pool of candidates who can do a range of jobs for them at short notice. The agency draws up a shortlist partly based on information that it requests from referees some of which relates to health and disability
(e.g. sickness absence figures). Is this lawful?
Answer: There is a breach of Section 60. This is because the agency, acting on behalf of the employer, has requested information about health and disability to determine who should be shortlisted. It would be good practice for employers to instruct agencies not to ask questions about health or disability when carrying out an exercise of this nature unless they are allowed to do so under one of the exceptions.
Question: When recruiting scaffolders, a construction company asks applicants whether they have a disability or health condition that affects their ability to climb ladders. Is this lawful?
Answer: As the ability to climb ladders and scaffolding is an intrinsic function of the job, the construction company is not in breach of Section 60.
Question: A telesales company wishes to achieve greater diversity in its workforce to reflect the consumers it provides services to. Various groups are under-represented, including disabled people. In its recruitment materials it asks disabled candidates to identify themselves so that they can benefit from the company’s guaranteed interview scheme for disabled candidates. Is this lawful?
Answer: Asking health- or disability-related questions for this legitimate purpose – promoting lawful positive action – is not in breach of Section 60.
Question: A charity wishes to recruit a Deafblind project worker who has personal experience of Deaf blindness. This is an occupational requirement of the job and the job advert states that this is the case. In the application form the employer asks for evidence that applicants meet this requirement. Is this lawful?
Answer: It is lawful because being Deafblind is an occupational requirement of the job.
Question: The monitoring forms containing health- and disability-related information that a large public sector employer uses have not been separated from the rest of the job application forms. Consequently, the panel making shortlisting decisions uses the information it has been given about health and disability to sift out candidates that in its view are not up to the job. Is this lawful?
Answer: It is a breach of Section 60 to ask for information about health and disability in order to shortlist candidates during a recruitment process. If the information is legitimately sought for monitoring purposes, it should be kept separate from the application form and should not be seen by the interview panel.
Question: A small employer is unable to separate monitoring information about disability in job application forms because she personally handles the whole recruitment process. However, she takes care to disregard this information in respect of shortlisting and selection. Is this lawful?
Answer: Provided that she disregards information about disabilities (for anything other than monitoring purposes) and considers each job applicant’s ability to do the job without reference to disability, then this is compliant with Section 60.
Question: At an interview for a research post a disabled applicant volunteers the information that he will not be able to use standard computer software to prepare reports because of the nature of his impairment. The interviewers are not sure whether they can ask additional questions about this.
Answer: If the preparation of reports is an intrinsic part of the job then additional questions can be asked to establish whether there are reasonable adjustments that can be made – for example, the provision of a voice activated computer – and to establish whether he is able to prepare reports with those adjustments in place. It would be good practice for the interviewers to explain the reasons for the additional questions during the interview.
Question: During the course of an interview, a job applicant discloses that he has a visual impairment which is not otherwise obvious. Unprompted, he tells the interview panel that he does not consider that the impairment affects his ability to do the job and asks if there are any questions they would like to ask him about this. A panel member does ask him if he will need any adjustments to carry out a test if he makes it to the next stage of the recruitment process. The panel does not use any disability-related information to decide if his application can proceed further. Is this lawful?
Answer: The panel has before it disability-related information which it ignores in its decision-making process. A panel member asks a legitimate question about adjustments to the recruitment process which falls within an exception. This means that the employer is not in breach of Section 60.
Question: An internal applicant is interviewed for a job. The interview panel includes someone who is aware that this applicant was recently absent from work due to a mental health condition for a number of months.
During the interview, this panel member asks the applicant whether there are any health issues which would affect his ability to cope with the mental pressures of the job. Is this lawful?
Answer: This will be in breach of Section 60 if coping with mental pressure is not an intrinsic function of this particular job.
Question: An employer is interviewing an applicant for a post where coping with mental pressure is an intrinsic function of the job. The employer asks the applicant to give examples of how he has handled a difficult situation or worked to a tight deadline.
Answer: The employer has not breached Section 60 by asking these questions as they are about the applicant’s ability to do the job and are not related to the applicant’s health or disability.
The position once work has been offered
Question: An employer refers successful candidates to its own occupational health practitioner who asks them to complete a health questionnaire. This asks questions about mental health which are not necessary to assess the candidate’s ability to do the job. One disabled applicant gives information about a long-standing mental health condition which is well controlled by medication. The employer withdraws the job offer relying on this information.
Answer: Questions about health and disability can be asked after a job offer has been made but the successful candidate would be able to make a claim of disability discrimination if the offer has been withdrawn because of his disability. However, referring successful candidates to an occupational health practitioner can be a positive step as it should provide an opportunity to explore reasonable adjustments with candidates who have a disability.