Diversity and Inclusion - Building Inclusive Workplaces
Out-Law Analysis | 17 Oct 2018 | 10:55 am | 7 min. read
Institutions can take steps to help prevent staff avoid stress at work, but they must also be ready to intervene if cases arise, particularly if stress develops into a mental health disability.
Potential prosecution, regulatory fines, tribunal claims, and reputational damage are among the risks that universities face if they fail to manage mental health disabilities properly.
Statistics detail how widespread mental health issues are. They highlight why all employers need to be aware of their legal obligations when dealing with staff that experience mental health problems.
According to government statistics, one in four adults are estimated to suffer from mental health at some time during their lives, and nearly three in every 10 employees will experience a mental health problem in any one year.
In addition, according to the 2017 Labour Force Survey, produced by the Office for National Statistics, stress is the most common form of work related illness, overtaking musculoskeletal disorders, the rates of which have broadly fallen since the turn of the century.
In the higher education sector, it is thought that few employees disclose a mental health condition to their employer, which raises a number of issues: people may not be getting the support that they need; the institution may not be able to comply with its legal obligations; and the institution may be failing to provide an inclusive environment. It is therefore vital for institutions to be able to understand and recognise the signs of stress and mental health difficulties so that appropriate support and action can be taken.
The Health and Safety Executive (HSE) in England has defined 'stress' as an "adverse reaction people have to excessive pressures or other types of demand placed on them". It has also defined 'work related stress' as "the process that arises where work demands of various types and combinations exceed the person’s capacity and capability to cope".
The different definitions recognise the fact that some factors that can cause stress among staff are within the control of employers, while some are not.
For example, factors employers can control include workers' workload and working environment, as well as the work relationships and communication they are exposed to. They can also set cultures, such as in respect of work-life balance, and have appropriate policies and procedures to address things like bullying in the workplace.
Individuals' experiences in childhood, their family relationships, and their problems with addiction, finances, housing and bereavement are examples of factors that can cause stress, that are outside an employers' direct control.
Different people have different tolerance levels when it comes to stress. Normality for one person may be excessive pressure – resulting in stress – for another.
Stress is not in and of itself an illness, but it can result in or be a trigger for illness. The impact of stress can be shown in physical and mental conditions, such as anxiety or depression, or heart problems.
Illnesses that manifest themselves from stress can be said to constitute a disability under the terms of the UK's Equality Act. This will be the case where employees have 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.
When assessing the impact on day to day activities, the focus is not on what an employee can do, but rather what they cannot do, or only do with difficulty. 'Long term' is assessed as a condition that has lasted 12 months or is likely to last 12 months.
The duty to make reasonable adjustments is triggered where the employer knows, or ought to know, that an employee, or job applicant, has a disability and where a provision, criterion or practice they implement causes the employee or job applicant to be at a substantial disadvantage in comparison with a non-disabled person. In such cases the employer must take reasonable steps to prevent the provision, criterion or practice having that effect.
Examples of what might constitute a 'reasonable adjustment' are set out in statutory guidance. The duty is not satisfied by treating all alike.
A reasonable adjustment can include reallocating duties to others, changing an individuals' work hours or place of work, allowing absences for treatment or rehabilitation, buying them different equipment to use or providing support workers to help them in their role. Modifications can also sometimes need to be made to formal procedures, such as disciplinary and grievance policies, and to redundancy criteria too.
The onus is on the employer to assess what adjustments they need to make, but it is advisable for universities to do this with specialist help.
What adjustments are 'reasonable' to make are dependent on a wide range of factors, such as the type and size of the employer and their financial resources, how practical the measure is to implement and its likely effectiveness, the potential disruption the adjustment could have to other activities, and the availability of any financial or other assistance. Due to their size and financial resources, tribunals often expect universities to go to great lengths to make reasonable adjustments.
Ultimately, however, only a tribunal can determine whether employers need to or should have made reasonable adjustments for a disabled member of staff.
There have been cases in which the issue has been considered before the Employment Appeals Tribunal (EAT) and Court of Appeal in England and Wales. The cases provide practical examples of how the reasonable adjustments duty can be triggered but not need to be acted upon.
In 2014, the EAT held that technology company General Dynamics Information Technology (GDIT) did not have to adjust its absence policy to account for a disabled member of staff. This was despite the member of staff arguing that GDIT in applying the policy had not fairly accounted for their disability. They claimed their disability had caused the majority of their absence from work and led to their dismissal when the company's absence policy had been invoked in disciplinary proceedings. The EAT ruled that there was no reasonable step GDIT could take to help the staff member overcome their disadvantage in meeting the company's requirement for a consistent attendance at work.
In 2015, the Court of Appeal considered a similar case brought against the Department for Work and Pensions (DWP). In that case, DWP's sickness absence policy took disability into account, but the employee argued that the policy had not been applied in their case when issued with a written warning after a series of absences.
The Court of Appeal found that the provision, criterion or practice that the employee was required to observe was to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. It said this requirement "bites harder" on disabled people compared to the able-bodied. However, although the duty to make reasonable adjustments was triggered, the court considered that the change the employee was asking DWP to make was not reasonable. When assessing the adjustments that an employee needs, universities should:
Importantly, universities should remember that it is the employer’s statutory duty to seek out and consider reasonable adjustments as opposed to relying solely on the employee to put forward suggestions.
Even if universities do not have to make adjustments to account for mental health disabilities under the Equality Act, inaction could spur claims under UK health and safety laws.
Health and safety laws impose a duty on employers to ensure so far as is reasonably practicable the health safety and welfare of employees.
This includes an obligation to carry out risk assessments, including stress risk assessments, and take action to tackle problems identified.
Guidance has been produced by the HSE on stress management standards and how to tackle work related stress which can help universities meet their obligations under health and safety law.
Occupational health specialists can help universities to manage staff stress and mental illness. They can help institutions' human resources teams answer the questions they need to ask to determine whether, and the extent to which, the 'reasonable adjustments' duty applies under the Equality Act, as well as meet their duty of care requirements under health and safety law.
Those specialists can talk universities through the various options and give advice on whether potential measures are 'reasonable', albeit ultimately the university, as the employer, has to take the decision in relation to this. It is incumbent on institutions to manage potential tensions around the role of occupational health specialists, as they can be perceived as being in support of employees by human resource teams or managers, or vice versa by employees.
Ultimately, tackling stress requires a multi-faceted approach. Universities should consider stress audits and directing resources to reduce or eliminate sources of stress, and ensure staff are adequately trained and supported and have access to support during times of change or uncertainty.
Universities might also consider providing stress management and relaxation techniques training, building personal resilience training, promoting healthy behaviour and exercise, offering personal counselling schemes, delivering flexible working/work life balance initiatives and introducing mental health champions.
Helen Corden is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons launched a whitepaper focussing on mental health to mark World Mental Health Day. To read more and download our paper please visit our website here.
Diversity and Inclusion - Building Inclusive Workplaces