We receive many enquiries from people with mental health disabilities who struggle to get their employer to agree to the work adjustments they need for their role. If this is your situation, please call us for a free initial consultation on 01522 440512. Alternatively, read on for more information about mental health disability reasonable adjustments.
Do You Have The Right To Reasonable Adjustments For Your Mental Health Disability?
Under the Equality Act 2010, employers must make reasonable adjustments for their workers, contractors, employees and job applicants etc who have a disability. Therefore, identifying whether your mental health condition means that you are a disabled person is key to establishing whether or not your employer must make reasonable adjustments for you.
In deciding whether someone is disabled, the Employment Tribunal will consider whether they have a “physical or mental impairment” or a combination of both. Further, whether their impairments have a substantial and long term adverse effect on [the disabled person’s] ability to carry out normal day to day activities.
Substantial means something more than a minor impact or inconvenience. With special regard to mental health and mental impairments, the Employment Tribunal are aware that such conditions are likely to fluctuate. Accordingly, the impact could be variable.
The reference to day to day activities refers to, as expected, normal everyday activities. The Employment Tribunal have considered going to work, using a computer, writing, mobility, driving, shopping, preparing food, engaging in normal social activities etc to be day to day activities.
In addition, the impairment has to be long term. This means effects must have lasted (or be liked to last) for at least 12 months. This can be a difficulty with mental health impairments given the fluctuations. Especially so if the impairment is as a result of a life event and there is an expectation that as time goes on, with support and treatment, the person might recover in less than 12 months.
Also, for reasonable adjustments, the employer has to know the person working for them is disabled. Mental health difficulties can be difficult for the person and the employer to identify. This situation is exacerbated as many people find it difficult to talk about their mental health.
With reference to knowledge, obviously as employment lawyers we prefer our client to have told their employer directly that they consider themselves to be disabled and what their mental health impairments are. This avoids any dispute over who knew what and when. However, in the absence of our client giving the employer that direct information, the Employment Tribunal will consider whether or not there was sufficient information from which the employer should have known that person was disabled. For example, changes in their work pattern, changes in their behaviour, awareness of a life event, periods of absence due to ill health etc.
What Type Of Reasonable Adjustments Should An Employer Make For Mental Health Disabilities?
The intention of reasonable adjustments is for the employer to make changes which remove or reduce the disadvantages someone will suffer due to their mental health disability. Therefore, what reasonable adjustments they may need to their role will depend on their own particular circumstances and, of course, the circumstances of their disability.
Given that reasonable adjustments can be as individual as finger prints, there is no “set list” of reasonable adjustments that an employer should make. That being said, the Employment Tribunal have identified examples such as: –
- A temporary or permanent change to the type of work someone does.
- A temporary or permanent change to someone’s physical working environment.
- A temporary or permanent change to someone’s work pattern.
- The provision of equipment, services or support.
- Changing how and when tasks are communicated to the employee (for example a quiet period where a disabled employee will not take calls or emails).
- Agreeing a preferred method of communication.
- Changing someone’s workplace, for example working from home or in a quiet area.
My Client’s Story
My client had a long history of anxiety and depression which went back to her teenage years. As an adult in her 40s, she had found a way to manage her condition on a day to day basis with a combination of medication and therapy. She was coping well and had been with her employer for nearly 6 years when, tragically, she lost her father to cancer.
The impact of losing her father had an entirely understandable impact on my client’s mental health. She was absolutely devastated and struggled to maintain the self-care regime she had relied upon to stabilise her condition.
Initially, her employers were sympathetic, granting her a period of bereavement leave and sending flowers and supportive messages. However, after a month or so, her Line Manager began to pressure her to return to work.
When my client did return, she quickly realised that no one had been undertaking her work in her absence. There was no return to work meeting and no discussion about any support for her going forward. She was expected to undertake her already pressured workload and deal with the backlog which had built up during her bereavement leave. Unsurprisingly, my client felt overwhelmed. She asked her Line Manager for help. Specifically, for a temporary reduction in her workload and/or assistance to deal with the backlog of work. She explained about her long standing mental impairment and, also, that her health had deteriorated significantly since her father passed away. The Line Manager’s response was that as she was back at work, she was expected to do her full role plus deal with the backlog. No assistance was offered.
My client struggled to cope and, in fact, was struggling so much that she considered taking her own life. Fortunately, her family and Doctor intervened and she was signed off sick for a period of two months. Her sick note stated her mental health as the reason for her absence.
In response to the above, her employers immediately issued her with an attendance warning. This being a disciplinary warning. If she received a further two warnings, she would be dismissed. There was no discussion with my client before this warning was issued. It simply arrived by email to my client’s personal account.
My client felt she couldn’t take the situation much longer and reached out to Lincs Law for a free consultation. I was able to assure her that I felt she had been treated extremely badly and, further, I considered her employer’s actions to be in breach of the Equality Act 2010.
We later had a Fixed Fee Consultation together (please see https://lincslaw.co.uk/fees/employees/) where I took a full background of what had been happening and reviewed the documentation she provided. We agreed an action plan whereby I submitted a grievance on her behalf. I, also, set out a number of a reasonable adjustments my client would be seeking upon the expiry of her sick note and her intended return to work.
As time went on, there was a great deal of resistance from my client’s employer to making any changes to her job role which would assist her. In the event, we began ACAS Early Conciliation with a view to submitting my client’s claim to the Employment Tribunal. It was at that stage my client instructed that she felt all trust and confidence in her employer was gone. She was extremely concerned about the impact on her mental health generally were she to return to work in such an unsupported environment. Accordingly, as instructed, I began to negotiate an exit package for my client.
In the event, we were able to achieve a significant amount of compensation. My client was never motivated by the money, but the financial settlement did give her a significant period of time to concentrate on her health and re-establish the stability in her mental health conditions. I also received a lovely email from her a few months later when she secured new employment with a different (and much better) employer.
Lincs Law Employment Solicitors Can Help You
If you need reasonable adjustments due to your mental health disability, call us for an initial free consultation. Alternatively, for more information about disability discrimination and discrimination claims at the Employment Tribunal, please see our website at https://lincslaw.co.uk/services/employees/workplace-problems/disability-discrimination/
Sally Hubbard,
Specialist Employment Solicitor
Lincs Law Employment Solicitors
Tags: lincs law employment solicitors mental health disability mental health discrimination mental health equality act mental health reasonable adjustments sally hubbard
