New ACAS Guidance

ACAS has recently published guidance on Reasonable Adjustments for Mental Health, which you can read here:  https://www.acas.org.uk/reasonable-adjustments-for-mental-health

This helpful guide sets out the definition of reasonable adjustments as well as examples, and gives practical advice to employees on requesting, and to employers on considering and responding to requests for, reasonable adjustments.   ACAS also provides here template request and response letters.  There are also case studies, including one in relation to reasonable adjustments for ADHD and autism, and another for OCD:  https://www.acas.org.uk/case-studies-about-reasonable-adjustments-for-mental-health

This is a good time to review the key legal points to be aware of when considering the duty to make reasonable adjustments, particularly in the context of mental health conditions, and other hidden disabilities such as neurodivergent conditions.

When does the reasonable adjustment duty arise?

A mental health condition may amount to a disability under the Equality Act 2010.  This is the case if the condition has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The impairment must have lasted or be likely to last for at least 12 months.  A neurodivergent condition may also amount to a disability.

The Equality Act also sets out a duty on employers to make reasonable adjustments to ensure that individuals with a disability, whether mental or physical, are not placed at a disadvantage in the workplace.

Deciding whether or not such adjustments are reasonable will include taking into account factors such as the cost, practicability and effectiveness of the adjustment.  The EHRC Code states that “ultimately the test of the ‘reasonableness’ of any step an employer may have to take is an objective one and will depend on the circumstances of the case”

For an employer to be liable for failing to comply with this positive obligation the following points also need to be met:

  • An employer does need to know that the individual is disabled before they can be expected to make reasonable adjustments in line with this legal obligation. Knowledge however need not only be because the employee has disclosed their disability to their employer.  It may also be imputed, where the disability is apparent from the employee’s behaviour or circumstances.   This area does present particular challenges in the case of hidden disabilities such as mental health and neurodivergent conditions.
  • The employee must be placed at a substantial disadvantage by some requirement or practice, or physical feature, in their work in comparison to persons who are not disabled. This could be in relation to access to employment, training, facilities or benefits. This means a comparative exercise demonstrating substantial disadvantage is required.
  • There must be a reasonable adjustment that the employer could have made that would remove or reduce the disadvantage suffered by the individual.

Helpful Illustrations of the duty from cases

By way of illustration of some of these points, it is helpful to set out some recent case law examples looking at reasonable adjustments in relation to hidden disabilities including mental health conditions and neurodiversity:

  • In the case of Dunn, the claimant suffered depression and anxiety and his request for flexible working arrangements was denied, which was held to be a failure to make reasonable adjustments.
  • In the case of Carreras, Ms Carreras requested to work from home two days per week due to her chronic fatigue syndrome. Her request was denied and she was later dismissed. The Employment Appeal Tribunal found that employer’s refusal to allow Ms Carreras to work from home amounted to a failure to make reasonable adjustments.
  • In the case of Lamb, the claimant was a teacher who suffered from post-traumatic stress disorder and requested to teach in a classroom with more natural light and ventilation. Her request was denied. By not considering Ms Lamb’s request for a better working environment, the tribunal found that the employer failed to make reasonable adjustments.
  • In the case of Hurle, the employee was a fire station manager whose daughter was experiencing mental health issues. He was then diagnosed with depression himself and prescribed medication. He therefore applied for an urgent transfer to a station closer to his home. The occupational health report supported the transfer for a shorter commute. The employer denied the transfer and dismissed him for poor attendance which was found to be a failure to make reasonable adjustments.
  • In the case of Aleem, the employer E-Act Academy Trust was found not to have breached its duty to make reasonable adjustments as it was not a reasonable adjustment for the claimant to be paid at a higher rate during sickness absence indefinitely where the employer was already facing financial difficulties.
  • In the case of Jandu, the employee had been diagnosed with dyslexia, and it was accepted that the employer, M&S, was aware of her dyslexia. Ms Jandu was selected for redundancy following a scoring process against criteria described as ‘behaviour’, ‘leadership’ and ‘technical’. During the consultation meetings, she raised her dyslexia as affecting how she writes emails and how long this takes, and claimed this had correspondingly affected her redundancy scores. Ms Jandu’s line manager denied that her selection had anything to do with her dyslexia and did not seek advice about its impact. Ms Jandu was dismissed and brought claims for unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments. She succeeded on all her claims. M&S was criticised for failing to refer Ms Jandu to occupational health and not making further enquiries to understand the claimant’s dyslexia and make appropriate adjustments.

This contrasts with the situation, which arises from time to time, where the employee refuses an occupational health referral. In such case the tribunals have accepted that an employer can clearly only act on limited knowledge.

  • In the case of Morgan, the claimant refused occupational health input and all but one of her claims, including failure to make reasonable adjustments, were struck out at tribunal.

In relation the question of knowledge of disability, the recent case of Fabian is interesting to note.

  • The employee Mr Fabian had on starting his employment completed a medical questionnaire and was asked to disclose ‘any medical condition you feel is relevant to MHE [material handling equipment] operation’. Mr Fabian did not disclose anything. The form also asked if he had a disability and he ticked the box ‘no’. He had already been diagnosed with personality development disorder, and was soon after diagnosed with autism. Mr Fabian maintained that he did not regard himself as having a disability. He did, however, claim that, at some point after starting his employment, he spoke to his line manager about his autism and personality development disorder, and further said that he found it hard to concentrate and that he struggled with complex tasks. He also claimed to have told his line manager about his condition when he likened himself to Greta Thunberg and said that he had her condition. Mr Fabian was dismissed for poor performance. The tribunal found that the employer could not reasonably have been expected to know that Mr Fabian was autistic. There was no evidence of behaviour such as to trigger the need to make a reference to occupational health. Further, while Mr Fabian may have likened himself to Greta Thunberg in the course of a conversation with his manager, any reference to Mr Fabian himself suffering from autism was likely to have been oblique and unclear and insufficient to alert the employer to the fact of the claimant’s disability.

Even where a mental health or neurodivergent condition may not constitute a disability as defined in the legislation, it is encouraged to take a proactive approach to promoting mental wellbeing in the workplace, and to supporting those with mental health and neurodivergent conditions as far as reasonably possible. This is clearly borne out by the recent ACAS guidance.

When positive approaches to mental wellbeing and to neurodiversity become culturally embedded rather than box-ticking steps, the result is an improved workplace culture with increased equality, diversity and inclusion, a more productive workforce and better talent attraction, retention and progression.