Poor visibility of mental health 'raises risk of UK Equality Act breaches’

Are you checking in regularly with your home-working employees? We pose the question in light of research showing almost four in 10 employees say they have experienced poor mental health related to work in the past year and there is a growing reluctance to disclose it to management. So increasing levels of poor mental health coupled with increasing unwillingness to disclose it. The result? A serious risk of employers breaching legal duties under the Equality Act – and we will come onto that in a moment.

First the research. This is a YouGov survey of more than 3,600 employees which was commissioned by Business in the Community and Bupa. It shows that employees are increasingly telling no-one about their mental health issues – a rise from 27% to 30% over the course of the last 12 months – and it shows that men are more likely to keep work-related mental health problems to themselves, 35% compared with 26%. 

That research has been picked up by Personnel Today which urges firms to ‘step up’ mental health support during the pandemic - and there is certainly a case for that, especially if the evidence shows employees are reluctant to disclose health issues to their managers. The risk is that you remain unaware of the problem, unaware that it qualifies as a disability under the Equality Act, unaware it triggers the duty to make reasonable adjustments. The key point here is the duty can be triggered even if you didn't know about the individual's poor, and perhaps worsening, mental health condition and simply saying "well they didn't tell me so how was I supposed to know" is unlikely to be a good enough excuse. That's because you could be fixed with constructive knowledge of their disability. Why is that? It comes down to how the legislation is expressed – the Equality Act effectively asks the question of a manager: 'could you reasonably be expected to know?' and it places the burden squarely on the employer's shoulders to show that it was unreasonable to have the required knowledge. That legal provision is backed up by the Employment Statutory Code of Practice – at paragraph 5.15 it says: ‘An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances." The circumstances we know – employees working from home remotely, well publicised issues around the strain on mental health, managers unable to see and meet employees and talk to them in the normal way. But that all important legal duty has not gone away and managers need to understand that.  Amy Hextell is one of the lawyers on our team currently advising on this issue. Amy joined me by video link from Birmingham:

Amy Hextell: “Something that employers have come to us quite a lot about, which I suppose is a good sign, but it's often in the context perhaps of having not done what they should have been doing and only realising that later down the line, is in the context of making reasonable adjustments for disabled employees and whilst, of course, there are plenty of workforces still out there operating, you know, in manufacturing plant or on site in in shops, and that sort of thing there's no doubt that many of us are now working from home and that in itself presents a challenge because, of course, employers just have less visibility of those employees who may be suffering with either a physical disability, or in particular at the moment, a mental health condition which may qualify as a disability under the Equality Act. It's really important that employers are having regular conversations with employees, both those that they knew prior to all of this who perhaps suffered with their mental health, but also those who perhaps didn't suffer with their mental health prior to all of this, but have found that as a result of the pandemic, and everything that's ensued, that they are now struggling with their mental health. Employers need to be having individual conversations with those people to check, essentially how they're getting on, and make sure that there is nothing the employer can be doing to help support them in achieving their work, or in meeting deadlines, meeting performance standards, because it is a legal duty on employers to take proactive steps to make reasonable adjustments to avoid disadvantage for disabled employees and I think a large part of the problem at the moment is that employers simply don't have that visibility so you're not able to identify that somebody might be struggling and might need some assistance. So having those regular conversations, picking up with individuals, looking at things like flexibility around working hours, providing a buddy system, perhaps even allowing people into offices and, of course, in England at the moment we're still in lockdown and lots of other places around the world are too, but it may be that you're able to allow people to progress into roles where they're actually going into the office a little bit more, because it would be a reasonable adjustment to do so. So there is a lot for employers to think about, but I think that the first step is absolutely having regular conversations with your employees, both those that you know to have a disability, and those who you don't know have a disability, but who you suspect may be struggling or may need assistance.”

Joe Glavina: "I'm just thinking of a worst case scenario here, Amy, where further down the line an employee's mental state gets worse so they can't work any more and they end up blaming the employer for a lack of support - so they argue there is a breach of that duty to make adjustments for them. What's the advice around that?"

Amy Hextell: “I think that it's important employers realise that, that if they're having those conversations, that's great, but really the important thing is to be documenting those and that can be as easy as, you know, sending a follow up email to the individual after the discussion to sort of summarise what's been discussed. Some employers, and we are seeing this more and more now and it's something that we would actively encourage, are using things often described as either disability passports or adjustment passports or wellness action plans - we've seen that sort of terminology come to the fore in the last few months - and they are really, again, nothing more than a record of the kind of conversations that have been taking place but they set out very clearly and assist managers in in making sure that they are going through every stage of the process necessary to demonstrate the efforts that have been made to support disabled employees. So we'd really encourage employers to look at that kind of thing. There are plenty of examples out there. Similarly, we've been working with employers and putting those together, so that that's a way that employers can assure themselves that they are taking the steps they need to and managers then can have a bit of confidence in having those conversations which can often be part of the problem in in getting those sort of conversations going.”

If you would like more analysis on the employer's legal duties and ‘the hidden impact of the coronavirus on employee mental health’ you can find that on the Outlaw website. That article also covers the regulatory dimension dealing with the employer's health and safety duties, which is important given the HSE has been updating its guidance frequently during this pandemic and, of course, employers need to stay on top of that..