The Equality Act and mental health in the workplace

Introduction

When we think of our mental health, we can view its affect on our ability to undertake everyday tasks as a private matter, which can stop us from seeking help. This can be further compounded by some organisations' lack of knowledge and understanding that mental health can affect people’s ability to perform their work, and that in such cases, support may be required in the form of reasonable adjustments.

In terms of what mental health is, conditions such as stress or depression may come to mind. Other conditions that can affect a person’s mental wellbeing, such as the menopause, or which change how a person understands and processes information from their neurotypical counterparts, such as autism or ADHD, are perhaps less thought of in the work environment. In the second decision by HHJ Taylor in Mr A Elliot v Dorset County Council UKEAT/0197/20/LA (V) (2021), it was mentioned that if an employee has coping strategies that may breakdown in situations where, for example, the person is under stress, that does not prevent the person from being disabled. In that case the employee was on the autistic spectrum and his behavioural characteristics at work led him to seek a diagnosis. 

A person’s mental health may be affected by life events. The affects can include or trigger low mood, which itself can lead to a lack of motivation that may cause a person to be disinterested in mundane tasks or may cause a person to avoid time consuming and complicated tasks. They may appear withdrawn, less responsive or generally unhappy. That in itself should not mean that the person is not capable of doing their work, but it can lead to tensions in the workplace where team motivation, the volume of work, deadlines and working relationships are key and where an unspoken persona is expected. Missing deadlines, showing up late for meetings, being described as ‘curt’ or ‘too direct’ may all be signs that someone is under considerable stress and pressure, there could be neurological factors to consider and yet, unfortunately, they may also be interpreted as a person not fulfilling expected standards set by the employer. 

The Equality Act

If we turn to the Equality Act, it defines a disability as ‘a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.’ ‘Substantial’ is defined as being ‘more than trivial,’ which in itself is a low threshold. A disability is a protected characteristic under the Act and a diagnosis is not required; however, on an evidential note one may be beneficial depending on whether the employer takes the mental health of its workers seriously. Where the mental health of an employee affects their ability to undertake certain aspects of their work, and the employer treats them less favourably as a result, the employer’s acts may be discriminatory.

‘Reasonable adjustments’ is the term given to adjustments that, where the need is met or support provided, allows the person to undertake their work or a certain aspect of it. In essence it can be viewed as enabling a person access to the workplace. ‘Reasonable’ connotes a threshold that is achievable. Whilst the usual direction of travel is for an employee to raise a request for reasonable adjustments, an employer may spot a potential need and invite a conversation. Raising the subject of reasonable adjustments can create tensions as the expectation of the employee may be misunderstood and the desire of the employer may be curtailed by a lack of understanding among management. Mental health in the working environment is a concept to be understood rather than a prescriptive definition and a manager’s unconscious bias can affect the prospect of a request for reasonable adjustments being successful.

Conclusion

Reasonable adjustments are always going to be required by someone where there are systemic issues within the culture and management of the business. There can also be a notion that ‘resiliency’ means that a person should be able to cope with such circumstances and that by not doing so, they lack the capability for the job. Such circumstances limit an open conversation on mental health and place a huge amount of reliance on a person’s coping strategies, despite the legal obligation on employers to create a safe working environment.

An effective mental health awareness strategy includes training on unconscious bias, an open narrative from management on equality and acceptance, mental health first aiders and the removal of barriers to entry to ensure that candidates from a diverse range of backgrounds have the ability to apply and be considered for roles in order to maintain a diverse workforce. Reasonable adjustments should be the norm rather than the exception and there should be mental health champions at the highest level of management with communication channels with employees of all levels.   

Laura Skinner is a freelance generalist solicitor

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