Some Frequently Asked Questions

Since December 2005 a mental impairment no longer has to be clinically well recognised for it to be covered by the DDA. This means that potentially any mental health condition could be covered – it could include someone with depression, schizophrenia, obsessive compulsive disorder, or an eating disorder.

The DDA is not, though, impairment specific and only lists HIV, MS and Cancer as definitely being covered from the point of diagnosis onward.

All other conditions and their effect on an individual are subject to the decision of a court. This is because the definition of disability under the DDA is a legal one rather than medical.

The court will decide whether someone is covered by the DDA by considering  whether their mental health condition has a long term substantial adverse effect on his or her day to day activities. “Long term” means likely to last or has lasted for 12 months (and there are special provisions relating to recurring conditions); substantial means more than minor or trivial.

Obviously with this degree of ambiguity you would be unable to confirm whether someone was definitely covered by the Act (unless you went to court).

Therefore, instead of trying to work out whether a certain condition is covered you should adopt a best practice approach. This would mean treating an individual who you believe or know to have a mental health condition, regardless of what it is, as if they are covered by the DDA.

You should make reasonable adjustments to remove any disadvantage the individual is facing in their job which will help you to meet your legal duties under the DDA.

It might be reasonable in some situations depending on the individual circumstances.
You might decide to discount some or all disability related absences when considering:

• Promotion
• Training opportunities
• Redundancy
• Whether to reduce or end sick pay
• Disciplinary procedures for poor attendance

It is obviously only possible to consider whether to do this if disability related sickness absences have been recorded separately from other absences, such as:

• Non-disability related sickness absence
• Study leave
• Compassionate leave
• Disability leave

Whether you decide to discount some or all of the absence is ultimately a management decision, which should be determined by looking at the factors to be taken into account when consider what is “reasonable”   under the DDA.
These factors are as follows:

• How effective the adjustment is in preventing the disadvantage
• How practical it is
• The employers’ financial and other resources
• The availability of financial or other assistance to help make an adjustment
• Its financial and other costs and how disruptive it is. Factors to be taken into consideration when assessing reasonable cost include:

• the resources such as training that have been invested in the individual by the employer
• the employee’s length of service
• the employee’s level of skill and knowledge
• the value of the employee’s knowledge and relationship with clients
• the level of the employee’s pay

Only once you have considered these questions should you come to a decision about what to do. It is important to document your decisions and to make sure that your rationale for making a particular decision is clearly set out.

Under the Disability Discrimination Act (DDA) a disabled person is not obligated to tell an employer about their disability.  Employees who have a mental health problem are often reluctant to do this because they fear discrimination and feel it is not relevant to their ability to do the job.

A survey carried out by the ‘Mind Out For Mental Health campaign’ found that 74% of job applicants with mental health problems did not disclose their condition in application forms and 52% of workers concealed mental ill health for fear of losing their job.

If applicants or employees know that you have a positive equal opportunity policy, and in particular that there is a willingness to make reasonable adjustments for all employees, they will be much more likely to disclose their condition.

Disclosure can be beneficial because:

• the stress of not divulging a mental health problem can exacerbate the person’s difficulties at work
• the employee and their manager can then determine together what adjustments, if any, are required to maintain or improve performance
• the support of fellow workers can be enlisted

An employer is only obliged to make reasonable adjustments, though, where it knows or could reasonably be expected to know, that an employer’s arrangements/physical features are likely to place them at a substantial disadvantage. This means that it will be important for employers to be alive to any signs that employees may be showing of mental health issues.

The DDA gives rights to disabled people who have, or have had, a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Although ‘stress’ is not automatically covered by the DDA, work-related stress is the leading occupational health problem in the UK. Neither people nor organisations perform at their best when stress is not managed effectively.

Extensive misuse of the word stress in everyday language has caused it to become somewhat devalued as a serious health and safety issue.  Although workplace pressure is a part of everyday life and can stimulate and motivate your workforce, it is important to recognise the difference between pressure as a positive, dynamic force and stress or ‘distress’ which may have destructive and demoralising effects on the mental health of your workforce. 

It should be noted that work-related stress can often be linked to a variety of long-term health conditions that could be covered by the DDA such as depression, heart conditions, back problems and asthma.

If someone were to suffer from stress for a period of 12 months or more, it is highly likely that it would be connected with or caused by an underlying condition, such as depression. Stress in the workplace should therefore be taken seriously, and consideration given to make reasonable adjustments where appropriate.

It is important to properly plan a return to work for any employee who has been absent for a significant amount of time.  Take the opportunity to discuss with the employee any work-based issues that would assist them to feel confident and comfortable about returning to work and to talk about reasonable adjustments to assist them upon their return.

If appropriate seek additional guidance with the individual’s consent from your occupational health adviser or from their GP or specialist.  

Adjustments that might help smooth the process of returning to work for an employee who has depression might include:

• Planning and managing a phased return to work.
  
• Allowing the employee to reduce their working hours either on a temporary or permanent basis.
  
• Allowing the individual to work more flexible hours and/or to work from home.
  
• Providing additional supervision or support.
  
• Allowing the employee time away from the workplace for rehabilitation, assessment, or medical or therapeutic treatment.
  
• Providing a secure and confidential place to store medication if appropriate.
  
• Allowing the individual greater control over how they plan and manage their time and workload.
  
• Providing the individual with training to assist them in managing their time and managing stress if appropriate.
• Helping the individual to access therapeutic support, e.g. counselling or cognitive behavioural therapy, where appropriate.
• Identifying how the individual feels about their role and workload and implementing clear role objectives and actions accordingly – it may be appropriate to refer the employee for career counselling.
  
• Talking to the employee about the signs and symptoms that indicate the employee is at risk of a relapse and what the employee would like you to do to respond to them.
• Transferring the individual to a suitable alternative vacancy within your organisation.  This option is only appropriate where reasonable adjustments have been fully explored in their existing role.

This is not an exhaustive list and the adjustments required will vary between individuals.

On the individual’s first day back at work you should conduct a return to work interview. In addition to this you should arrange to have frequent informal catch-ups to discuss progress which will provide you with an opportunity to monitor and review the effectiveness of adjustments.