With Mental Health Awareness Week just behind us, mental health in the workplace has been brought back into the spotlight. But when it comes to mental health conditions, its often not evident that a person is unwell.
So what is an employer’s duty where an employee’s mental ill health isn’t known?
A mental health condition can be classed as a disability (in the legal sense of the word) where it has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities and can therefore include conditions like depression and anxiety. Day to day activities includes a person’s ability to work (although it doesn’t include highly specialised work activities).
Where an employee is disabled, an employer then has a duty to take certain actions. The important point to note in relation to an employer’s duty is that it arises where the employer knew, or should have known, about the employee’s disability. This is where hidden mental health conditions become a tricky area for employers, and ignorance of such conditions isn’t necessarily a defence to an employment tribunal claim. Guidance on the knowledge point from the Equality and Human Rights Commission states that “an employer must do all they can reasonably be expected to do to find out if a worker has a disability”.
So what can an employer reasonably be expected to do to identify affected employees?
It’s important to note that where an occupational health adviser or HR professional knows of the employee’s condition, an employer will usually be deemed to have knowledge too. One of the best ways an employer can keep on top of its duties is to be proactive in training it’s managers on good management practices and how to spot clues to potential ill health issues. Mental health is still an area often overlooked but employers should seek to raise awareness and encourage employees to speak up.
An employer should keep employee health at the forefront of its agenda from the very start of the employment relationship and make appropriate sensitive enquiries. For example, after a job has been offered and accepted an employer could use pre-employment questionnaires as a means of identifying any conditions that may mean an employee needs additional support to undertake the role. It is important to remember however that an employer should not make a job offer conditional on receipt of a satisfactory medical questionnaire unless the role has particular health requirements, such as general fitness requirements for a strenuous role.
An employer should also bear in mind that employees may develop a mental health condition after starting their employment; may not want to tell others about a mental health condition; or may not even be aware that they have a condition. Even so, an employer should be vigilant and look out for warning signs.
What must an employer do once the issue has been identified?
Where an employee has a disability, whether a physical or mental condition, an employer has a duty to make reasonable adjustments to reduce or remove any disadvantage to the employee in carrying out their role, to ensure that the employee is not discriminated against directly or indirectly, to ensure that the employee does not suffer harassment or victimisation, and to ensure that the employee is not discriminated against because of something arising in consequence of the disability (for example, that the employee is not performance managed or dismissed because of a characteristic of the employee which is attributable to their ill health).
Whilst it can be difficult to identify what reasonable adjustments an employer might make for an employee with a mental health condition, and each case will be different, an employer might consider changes such as reduced or flexible working hours, altering duties, or altering the application of a sickness absence policy.
What are the risks if an employer gets it wrong?
Where an employee is subjected to discrimination, an employer could find itself having to defend an employment tribunal claim and, where the employee’s claim is successful, can be liable for compensation. The amount of compensation varies greatly and is entirely dependent on the circumstances of the case. Compensation can include loss of wages and benefits, as well as injury to feelings, the latter of which could be anywhere between £900 and £42,900, and can be uncapped in the most serious of cases. In addition of course, there is the fact that the employer may have lost a good employee, that the employee may remain in poor health, and the adverse publicity for the employer.
Whilst it may not be possible in all cases to identify those who need help from their employer, there is much an employer can do in being proactive throughout the employment relationship and creating an environment where employees are empowered to speak up.
Kathy Halliday is an employment partner at VWV, a national law firm with a growing office and presence in Birmingham. Kathy can be contacted on 0121 227 3711 or at khalliday@vwv.co.uk.
