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Between September 2021 and May 2022, the words 'stress', 'mental health' and 'depression' appeared in more than 12,000 early conciliation or employment tribunal cases , demonstrating the prevalence of this subject matter in employment-related disputes.

Today, more than ever, employers are expected to afford greater consideration to workplace conditions that do or could impact upon employees’ mental health. Between September 2021 and May 2022, the words 'stress', 'mental health' and 'depression' appeared in more than 12,000 early conciliation or employment tribunal cases, demonstrating the prevalence of this subject in employment-related disputes.

While the law itself already imposes a duty on employers to make reasonable adjustments for disabled people under the Equality Act 2010, we are now beginning to see statutory bodies and regulators implement their own supplementary guidance around mental health in the workplace. In April 2023, ACAS published guidance for making reasonable adjustments for mental health. More recently, the Information Commissioner’s Office (ICO) published guidance around information sharing in mental health emergencies at work.

We have assessed how this new guidance should be interpreted legally and share our recommendations below.

Information sharing in response to mental health emergencies

Mental health information is highlighted by the ICO as one of most sensitive forms of personal information. The ICO has published guidance to help employers remain compliant with Data Protection law where there is a risk of serious harm to a worker or others which necessitates the sharing of mental health information. The guidance explains that organisations should share necessary and proportionate information without delay, with relevant and appropriate services such as emergency services and health professionals. The guidance also extends this scope to include an employee’s next of kin but highlights that there are instances where sharing all information with them may be inappropriate.

We recommend that employers consider adding to their suite of data protection policies to provide for such situations so that they are prepared and know the steps to take should they need to respond in a live emergency. The ICO also recommends that employers plan ahead so the internal response is clear. Such plans could include maintaining up to date emergency contacts with relevant consents.

It is reassuring that the ICO guidance offers employers some protection if the employee is later aggrieved by the information their employer has shared about them. The guidance states that if the employer has shared the information with the purpose of mitigating the risk of serious harm to the worker or others, they may not fall foul of data protection law provided that the information they share is both necessary and appropriate.

However, the guidance is clear that employers do not have carte blanche to share any and all mental health information in such situations. Key data protection law principles around the sharing of personal information still apply in mental health emergencies. Employers should consider both the lawful basis and special category condition that justifies a proposed disclosure. Employers should therefore carefully consider how they will justify their decision making because what is deemed an appropriate disclosure may differ depending on the particular circumstances of each case.

Reasonable adjustments for mental health conditions

Acas commissioned a review into work adjustments for mental health at work and subsequently published guidance with the aim to level up the country and improve mental health and wellbeing.

The guidance recommends that employers try to make adjustments regardless of whether the employee is disabled which goes further than the duty imposed by the Equality Act 2010. Employers should keep in mind that although the guidance is titled ‘reasonable’ adjustments for mental health, whether an adjustment is truly reasonable in the circumstances can only be determined by a tribunal. The facts and circumstances of each employee are considered on their own merit.

Although the suggestion that ‘reasonable’ adjustments for everyone without preconditions seems sensible, it is perhaps idealistic for the small to medium employer in that it doesn’t acknowledge the practical and commercial difficulties that such employers may experience in implementing such adjustments.

In parts, the Acas guidance may risk creating more onerous obligations than the law requires of employers. We suggest a cautious approach bearing in mind that if an employee finds it difficult to discuss their mental health with their employer, it may be that they do not wish to do so, meaning that the employer may not be able to assess what adjustments might be needed or implement any adjustments. Employers should keep their communications finely balanced and respect boundaries, otherwise their actions could cross into the territory of disability related harassment.

The guidance provides examples of possible adjustments to an employee’s working environment, policies and working relationships, such as relocating someone's workspace to a quieter area to reduce sensory demands and agreeing a preferred communication method to reduce anxiety. The written guidance is a step towards better understanding of mental health at work, however it is unable to provide adjustments for specific mental health conditions and is not a substitute for GP or Occupational health advice. Also, the lack of an influx of tribunal decisions reporting the Acas guidance recommendations may be an early indicator that, by its very nature, it is guidance and guidance alone and should be considered alongside the business needs.

Finally, the guidance suggests employers should introduce a reasonable adjustments policy. However, we would advise employers to proceed cautiously in relation to this. Such a policy may run the risk of being too bespoke and may go as far as to create the risk of indirect disability discrimination claims. A better approach would be to encourage engagement with adjustments within the company values and workplace culture could improve awareness and promote workplace training on adjustments for mental health.

Conclusion

Both sets of guidance will help employers make considered decisions, however we are yet to see either set of guidance be cited in any major tribunal or regulatory decisions.

The ICO guidance provides welcomed clarification to employers as to how to balance its legal obligations with practical emergency situations.

With the Acas guidance being the first of its kind, it is a helpful toolkit that will undoubtedly enhance the employment relationship and support employees in communicating their needs through the inclusion of template letters. However, it perhaps needs to go further to provide a range of adjustments that reasonably accommodate the spectrum of mental health conditions. Will it achieve its aim to improve everyone’s mental health at work? Only time (and continual review of trends in employment tribunal litigation) will tell.

 

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