August 22, 2016
Focus on mental health in the workplace
Research by the Equality and Human Rights Commission to be published September 2016 has found that employees with poor mental health earn up to 42% less than their colleagues.
Put another way, for every one pound earned by a male worker without a mental health condition, a colleague who suffers phobias or panic attacks earns 58 pence.
The findings have prompted claims of discrimination in the workplace against people with mental health problems, with the commission calling them a “hidden disgrace” and the Men’s Health Forum describing them as “shocking.”
Stress and mental illness are complex workplace issues for employers, particularly in relation to discrimination arising from a disability and the reasonable adjustments required by the Equality Act 2010.
Anxiety, stress, depression and related conditions that have a substantial and long-term adverse effect on an employee’s day-to-day activities may amount to a disability, giving rise to protection under the Act.
So when does mental health discrimination occur?
Discrimination arising from disability occurs when an employer treats an employee unfavourably as a consequence of the employee’s disability, if the employer can’t show that the treatment is a ‘proportionate means of achieving a legitimate aim’.
Identifying when an employee is suffering from a mental illness can in itself be very difficult.
The problem is exacerbated by the fact employees remain reluctant to reveal that they suffer from mental illness to their employers, due to the stigma and widespread misunderstanding that surrounds the issue.
The CIPD’s Employee Outlook: Focus on mental health in the workplace found that almost a third of UK employees had experienced unmanageable stress or mental health issues while in employment, but only 41 per cent felt confident disclosing this to their employer.
Mental health in the workplace – potential signs
Employers must be aware of the potential for ‘ordinary’ employment concerns having underlying causes.
For example, concerns about an employee’s conduct, performance, or issues appearing to be due to ’personality clashes’, may all indicate an underlying disability.
In the case of Nally v Freshfield Care Limited, a care worker with post-traumatic stress disorder had told a resident to “shut up” and then argued with a co-worker, leading to his dismissal.
An employment tribunal held it was discrimination arising from disability for an employee with mental health problems to be dismissed without a proper examination of the reasons for his erratic behaviour, and this case demonstrates the importance of identifying the cause of behaviour, performance or employment concerns.
Reasonable adjustments for employees’ mental health
If concerns do arise, employers should seek advice from occupational health or medical experts to assess whether there are any underlying causes, including a disability.
Employers are also under a duty to make reasonable adjustments for employees with a disability, including where the disability is mental health-related.
This can often be difficult for employers as, unlike many physical impairments, it is not always obvious what adjustments to make.
Reasonable adjustments can be wide-ranging.
For example, the recent case of Griffiths v The Secretary of State for Work and Pensions confirmed that employers may need to relax their absence management policies in relation to disability-related absences.
When dealing with an employee suffering from mental illness, the appropriate reasonable adjustment will depend on the individual circumstances.
Employers could consider modifying an individual’s roles and duties, meeting the cost of additional counselling, and changes to hours and duties.
However, employers should avoid adjustments such as sabbaticals, early retirement and topping up sick pay as these adjustments do not assist in keeping the employee in work or helping them to return after a period of absence due to ill health.
Failing to explore the underlying causes of an employee’s behaviour and refusing to deal with a disability when it arises can lead to expensive and time-consuming litigation in any resulting employment tribunal. Whilst mental illness can be difficult to identify and deal with, a careful and considered approach will ensure employers avoid falling foul of disability discrimination law.