New ACAS Guidance on Reasonable Adjustments for Mental Health at Work

On 17 April 2023, ACAS released new guidance on reasonable adjustments for mental health at work for both employers and workers.

The Law on Reasonable Adjustments

Reasonable adjustments is a concept introduced by the Equality Act 2010 (the “Act”). Section 20 of the Act imposes a duty on employers to make reasonable adjustments where a disabled job applicant, employee, worker and/or former employee or worker (in certain circumstances) is placed at a substantial disadvantage by an employer’s operation or imposition of a provision, criterion or practice (“PCP”).

Similar obligations arise in relation to physical features of a property or an employer’s failure to provide an auxiliary aid which may also be engaged when dealing with mental health impairments in the work environment.

The Act is engaged when dealing with a disabled member of staff. Disability under the Act is defined as a physical or mental impairment which has a substantial (more than minor) and long-term (lasts or is likely to last 12 months or more) adverse effect on a person’s ability to carry out day-to-day activities (walking, talking, concentrating, socialising, speaking, sleeping etc).

The Act provides that an employer is not under a duty to make reasonable adjustments if they do not know, and could not reasonably be expected to know, that the person has a disability and is likely to be placed at a disadvantage by the PCP or the physical feature or failure to provide auxiliary aid.

An example of a circumstance in which this may arise is where a business has a practice of only carrying out job interviews before 9 am each morning; a disabled applicant who has a mental impairment that satisfied the definition of disability (a relatively low bar) may be placed at a substantial disadvantage by the application of that PCP (the requirement for the interview to be conducted before 9 am); they may for example, have anxiety that would prevent them from travelling on public transport during rush hour meaning that either they would feel unable to attend the interview or they would not be in a position to perform well at an interview before 9 am. In such circumstances the business should consider a reasonable adjustment to the PCP and permit that interview to be undertaken at a time which would not require the applicant to travel at rush hour.

A Summary of the New ACAS Guidance

What reasonable adjustments for mental health are

The new ACAS Guide states that employers ‘should try and make reasonable adjustments even if the issues does not relate to a disability’ and summarises when reasonable adjustments must be made as follows:

• when an employer knows, or could reasonably be expected to know, someone is disabled;
• when a disabled staff member or job applicant asks for adjustments;
• when someone who’s disabled is having difficulty with any part of their job; and/or
• when someone’s absence record, sickness record or delay in returning to work is because of, or linked to, their disability.

We agree that these are all examples of when the duty may arise but employers should  not lose sight of the fact that it should identify the PCP being applied (or physical feature) to assess if it is that which is causing the substantial disadvantage and if so, then consider if any reasonable adjustments can be made to alleviate that substantial disadvantage.

It may be for example that an individual suffering from severe anxiety finds meeting new people very difficult and if therefore they are in a sales role, it may not be possible for that business to adjust the PCP of requiring sales staff to meet customers and potential new customers.

ACAS have usefully identified that when making reasonable adjustments for mental health, it is helpful for employers to recognise:

• every job is different, so what works in one situation might not work in another;
• every employee is different, so what works for one employee might not work for another; and
• mental health fluctuates over time, so what works for an employee now might not work in the future

but again, the business should consider the PCP or physical feature that is the issue and focus on the adjustments that can be made to that.

Examples of reasonable adjustments for mental health

ACAS helpful provides the following examples of possible reasonable adjustments to illustrate how wide and varied they can be;

• changing someone’s role and responsibilities – for example: reducing responsibilities which are generally more stressful, such as phone calls and customer facing work; the PCP here would be ‘the role requires X list of responsibilities’;
• reviewing working relationships and communication styles – for example: agreeing a preferred communication method, such as limiting spontaneous calls, to help reduce anxiety; the PCP here would be ‘you may receive work instructions in a variety of different ways’;
• changing the physical working environment – for example: relocating an employee’s workspace to a quieter area to reduce sensory demands; the physical features of the work location being the issue here;
• reviewing policy changes – for example: offering an extended phased return to work to support an employee to build up hours gradually so as to continue their recovery; the PCP here being the requirement to work full time or contractual hours; and
• provide additional support – for example: providing training or coaching to build confidence in skills relevant to the job; the PCP here being that no training or only X training is provided.

For further ACAS examples of reasonable adjustments, please click here.

Requesting reasonable adjustments for mental health requests

ACAS emphasises the importance of employers and employees working together to agree and review reasonable adjustments and helpfully propose that employees prepare before asking for reasonable adjustments by:

• thinking carefully about what they want to disclose about their mental health;
• reading any policies their employer has relating to mental health;
• thinking about how their mental health is affecting their work – for example: are there times in the day or week that are better or harder, or do you feel the same all the time?
• thinking about how work affects their mental health – for example: are there some tasks or situations that make you feel anxious, worries or numb?
• talking to a friend or family member to ask what they see and think about your patterns of behaviour;
• thinking about what adjustments are possible and reasonable for their employer;
• getting advice from an occupational health professional.

ACAS then proposes a meeting between the employer and the employee during which the they should try to agree a plan of action. It is suggested that the employee should:

• explain why they are requesting reasonable adjustments and which reasonable adjustments they would like;
• discuss and agree possible reasonable adjustments; and
• agree a plan to review and monitor the reasonable adjustments.

Responding to reasonable adjustments for mental health requests

ACAS proposes that upon receipt of a request for a reasonable adjustment meeting, employers should prepare by:

• agreeing a time and place for the meeting;
• asking if the employee is comfortable with a trusted person joining the meeting to take a note;
• reviewing their internal mental health, absence and reasonable adjustments policies to make sure they offer clear guidance of what is expected from them and their employee;
• sharing internal policies with the employee;
• thinking carefully about who will represent the employer in the meeting – it would be most useful for someone with some mental health training to attend;
• putting themselves in their employee’s position, thinking about what is going on for them and what they might need to feel supported at work;
• taking adequate time to prepare for a conversation by:
  • looking through examples of what reasonable adjustments are available and reasonable to implement in the context of the employee and their wider team;
  • identifying if there are potential risks to the employee’s team if particular adjustments are implemented; and
  • getting advice from an occupational health professional.
• explaining to the employee that some things might be possible and others might not be, but confirming that they are willing to support them access adjustments that are reasonable.

ACAS suggests that the approach the employer should take during the meeting should include:

• check in on how the employee is;
• explain what the business’ policy on reasonable adjustments for mental health is;
• ask the employee what reasonable adjustments they would like to explore and why they think these would be helpful;
• discuss how the reasonable adjustments could work in place;
• agree the reasonable adjustments to try;
• agree the plan to review and monitor the adjustments; and
• share what ongoing support is available.

To that list we would include, ‘identify the PCP or physical feature which is causing the substantial disadvantage’ as that will  help to identify what are reasonable adjustments. For example, a PCP which requires an employee to adhere to a particular working pattern may be difficult to make reasonable adjustments to, if unexpected and last minute absences are difficult to cover meaning work has to be undertaken by colleagues who themselves have their own workload.   The employer should therefore explore whether an adjustment to hours or number of days of work etc would secure more reliable attendance at work and if so, consider if that adjustment would be possible and reasonable.

ACAS sensibly recommends that when the reasonable adjustments have been implemented, the employer should monitor them using the approach agreed during the meeting and keeping a record of any changes made over time. Depending on the situation, it might be useful for the employer to arrange weekly, monthly or less frequent meetings to monitor the adjustments and show ongoing support.

Managing employees with reasonable adjustments for mental health

ACAS also makes sensible recommendations as to how an employer may support employees with reasonable adjustments; it is suggested that managers should:

• check in with their employees – for example by asking how they are and if they need help;
• recognise changes in behaviour;
• try to understand how an employee’s mental health affects them;
• understand that adjustments might not work the first time and might need to change over time;
• be flexible in their approach and respond to changing needs;
• show ongoing support;
• consider the needs of the employee and the team in case anything needs to change; and
• know when to ask for help from others, such as senior leaders, HR or occupational health.

Further ACAS states that managers can help the employee requesting reasonable adjustments look after their mental health at work by:

• making it clear that they should look after themselves and focus on managing their mental health;
• checking if they have accessed support available through work;
• letting them know about any policies that are relevant to reasonable to reasonable adjustments for mental health;
• letting them know that the organisation will try to support them in accessing reasonable adjustments; and
• explaining the reasonable adjustments process and procedures.

And presumably it should go without saying that Managers should monitor how the adjustments are impacting the employee, review the reasonable adjustments as agreed and arrange regular check-ins with the employee.

Reviewing policies with mental health in mind

ACAS highlights that when reviewing internal policies, it can be helpful to consider if the organisation’s policies:

• are clear and accessible;
• use language that demonstrates care;
• use ‘triggers points’ for absence that put employees with recognised and ongoing mental health problems at a disadvantage;
• allow managers and employees to take a person by person approach;
• are flexible to accommodate mental health conditions that might change over time;
• are clear on what needs to be done by who, how and when;
• are easy for employees to find;
• are understood by managers;
• are implemented consistently by managers; and
• provide opportunities for employees to give feedback on the policy and recommend changes.

and that to support mental health at work, a reasonable adjustment policy might also include:

• reference to a mental health or wellbeing strategy;
• activities to raise awareness of mental health in the organisation;
• information on the internal support available;
• what external support is available – for example an employee assistance programme or occupational health services; and
• manager training and support.

What is clear from the ACAS Guidance is that employers should have in place relevant policies on the management of disability related issues including the implementation of reasonable adjustments which include consideration of mental impairments as well as physical impairments. If a business does not have such a policy, it should prioritise the creation of one.

Should you require any assistance with the preparation of any relevant policy, the implementation of reasonable adjustments or any other questions that arise on the management of mental health issues in the workplace, please do not hesitate to contact Linky Trott (linky.trott@edwincoe.com)or any member of the Employment team.

Edwin Coe is a member of Care England. Our multidisciplinary Later Living & Care Services team of lawyers provide practical, expert advice to care home businesses.

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