Mental health in the workplace is becoming more and more of a hot topic in Irish HR and employment law discussions.
Through medical research, it's been identified that the issue of mental health is becoming an ever-increasing problem amongst Irish employees. The unfortunate reality is that there appears to be little information for employers out there to help combat this problem. This is a concern as not only can this lead to problems for employees but employers can also (a) be held liable for treating employees in a discriminatory fashion if their mental health is deemed to be a disability and/or (b) be left with an employee on long-term sick leave as the mental health issue wasn’t identified and resolved at an early stage.
Legislation
While there's no specific legislation in relation to mental health in the workplace, the area falls under the topic of ‘disability’ in the Employment Equality Acts and is outlined in the Equality Authority’s guide to mental health in the workplace which was published in February 2012.
The Equality Authority published the guide in order to explain “the legal requirement under equality law for employers to provide reasonable accommodation for people with disabilities, and what that might mean for employees with mental health difficulties.”
Discrimination
Employment-related discrimination on the basis of any of the nine grounds, including disability, is prohibited under the Employment Equality Acts. The definition of disability encompasses mental health and is applicable whether the mental health issue is a present or past issue. There has been a broad application of equality law in this area with the Equality Officer finding that depression, stress, and anxiety constitute disability as defined in equality legislation. Employers should be aware of this when looking to take any type of action with their employees.
Differential treatment
Treating a person differently doesn't confirm they've been discriminated against. There are certain circumstances in which a person can be treated differently based on any of the nine grounds if ‘positive action’ is enforced. This involves an employer being permitted to implement differential treatment if this means it will support the person in their employment or allow them to access a service.
Reasonable accommodation
‘Reasonable Accommodation’ is an integral concept under the Employment Equality Acts and obliges employers to assist employees with a disability so that they can access, participate, or advance in employment and undertake training.
The Equality Authority’s Guide emphasises the point that “reasonable accommodation practices which benefit employees with experience of mental health difficulties can have a positive outcome for all employees and for employers themselves. For example, reducing stress in the workplace is good for everyone’s mental health. It is also good for business outcomes, as a stress-free workplace helps employers to maintain maximum productivity and to retain staff.”
On that basis, reasonable accommodation helps employers to:
- Enhance business outcomes by maximising the engagement and skills of employees in the workplace.
- Create a positive working environment that is free from discrimination.
- Retain skilled staff.
- Promote equality.
- Fulfil obligations set out in the Employment Equality Acts.
Employers should undertake appropriate measures to ensure that such assistance is given through implementing supports and special facilities for an employee who has a disability, including those with mental health difficulties.
Such measures must take into account the specific disability-related needs of the employee and can include:
- Time off to attend medical appointments.
- Mentoring and peer support within the workplace.
- Consulting with an employee in order to accommodate their return to work.
- Adjusting an employee’s attendance hours or allowing them to work at home.
- Relieving an employee of certain tasks, and substituting other equivalent duties, in consultation with the employee.
- Provision of relevant training to support the employee to carry out their duties.
Reasonable accommodation requirements don't oblige an employer to employ or continue to employ an individual who isn't fit to perform the role. An employer can reasonably refuse to employ an individual suffering from a disability or look to terminate the employment of an existing employee who's suffering from a disability. This is once an employee cannot fulfil the duties of the role and where the employee cannot be reasonably accommodated in the role.
The Labour Court (EE – D037 2003) has found that an employer must ascertain a potential employee’s capacity by considering medical evidence, considering whether there are special treatment or facilities which can support the employee and ensure the employee can participate at each stage of the assessment and be permitted to present medical evidence.
This was also addressed by the Equality Tribunal in An Employee –v – An Employer (DEC- E2011 – 111) where the Equality Officer found that the onus is on the employer to take certain steps and that they must have ascertained the likely duration of the employee’s condition and the factual position of impairment. The Equality Officer found that the employer, in this case, had not satisfied the two-stage test or established a sufficient knowledge of the facts. They failed to refer the employee to a specialist to ensure clarity regarding the duration of the condition and the employee received €15,000 in damages for discrimination suffered.
However, it is important to note that an employer is not required to instigate measures that would impose a ‘disproportionate burden’ on the business and as such are only obliged to outlay a reasonable expenditure to accommodate a disabled employee. Therefore, an employer’s specific circumstances are taken into consideration to determine the extent of the measures to be imposed.
Disclosure
A person is not required under Equality legislation to disclose their disability. However, it will be easier to establish the appropriate measures that will be needed once an employer is aware of the presence of the disability. Employers should ensure that application forms and medical assessment processes are not discriminatory, imposing clear policies and practices which illustrate the existence of appropriate measures and by creating trust with the employee. However, there are strict rules on the retention of records by employers or disclosure of information to other potential employers, as doing so would be in contravention of the Data Protection Act 1988.
While the threshold required to be met by employers is ambiguous, it's evident that employers should:
- Be clear at all stages.
- Communicate fully with the employee.
- Consider special treatment or facilities that can assist an employee.
- Establish the full extent of the employee’s disability and seek medical advice to this effect when required.
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