Once upon a time the leading cause of absence from work was musculoskeletal complaints: bad backs, bad joints and the like. Not any longer. Although still number one, musculoskeletal impairments are closely followed by mental health problems, many but not all of them arising from work-related stress. The cause of the stress is largely an irrelevance for employers, the big issue is what can be done about the prevalence of stress-related illness in the Fire service?
Life is a long-term health condition. All of us are subjected to varying degrees of stress both inside and outside of work. Common causes include relationship issues, financial worries, general concerns about the future, family, you name it, it can cause stress. Stress is in itself not an illness. Some people enjoy a healthy amount of stress and thrive on it. For others it quickly spirals out of control and can cause physical as well as mental symptoms: headaches, rapid heart rate, increased blood pressure. The threshold at which stress becomes a problem to health is different for everyone: two people subjected to the same stress will not necessarily respond alike. But left unchecked stress can become common mental health conditions like depression and anxiety.
There is plenty of evidence to show that the threshold for unhealthy stress is actually much higher in the emergency services because people who do this kind of work acknowledge when they enter the profession that it is a stressful one. Some are even drawn to it. Workers can also freely discuss stress in an environment which is inherently stressful if they so choose. Sometimes however that is not an easy discussion which is one reason why it can go unchecked.
So how can employers know who is at risk of unhealthy stress? Men are notoriously poor at expressing when they need help. Mental issues are seen as weakness. Men do not want to let on that they are struggling. The Mental Health Foundation is doing work specifically around how to engage men at work to be more mentally healthy and that begins with being open. And recognition that mental ill health is every bit as real and as serious as physical ill health.
Mental illness can amount to a disability under the Equality Act 2010 if it is long-term and has a substantial adverse impact on daily function. The emphasis is on function not the label given to a health impairment. If there is a substantial impact in or out of work mental ill health can be a disability. If disabilities are present employers must by law make reasonable adjustments that can help the affected employee stay at work, return to work after ill health, aim for promotion, etc. Even if disability is not 100% established employers are advised to consult with affected staff to see what, if anything, can be done to retain talented people in the workplace.
So what does a reasonable adjustment for mental ill health look like? The legislation offers no prescription. The sky’s the limit! A good dose of creative thinking may be called for. Starting by consulting the employee who is struggling or who feels they cannot return to work is always the best place. And remember: it’s not a blanket “do everything” the employee asks. The starting point is for the employee to identify what practice, provision or criteria of the workplace is causing disadvantage. What is the thing making life difficult? Is it the hours? Is it the place of work? Is it the team he/she is in? Next: is the thing having a major impact? If the impact is minor or trivial the law does not require an employer to do anything. A sensible approach is advised however: if it seems trivial to an employer but is a big deal to an employee, and provided it is not too costly or too disruptive, why not give it a whirl? Many of the legal complaints I see on my desk arise from something simple being ignored. And remember too: treat people like you do care. There’s no faster way to a grievance and long-term disruption than to ignore a complaint whether you think it is legitimate or not. I never cease to be amazed at the lack of common sense and basic human consideration around reasonable adjustments and mental ill health at work. It isn’t rocket science. Simple steps like allowing a late arrival or early departure so the employee can go to counselling is an obvious example. If you want to make sure the system is not abused ask to see an appointment card. Moving someone to short-term alternative duties while they get back in the swing of things after a period of mental illness is another obvious example of a simple and reasonable adjustment.
All too often I hear employers saying they cannot offer any adjustments. I doubt that is true in the vast majority of cases. Another thing I hear is “But I don’t think it will make any difference”. The solution is obvious: if it’s a simple adjustment that you can make why not just try it out? If it doesn’t work you can say I told you so and try again. If there is nothing that can be done you have discharged the legal duty and need do no more. Of course that doesn’t mean you will avoid a tribunal but as long as a proper process is followed you will manage risk. If an adjustment does work you have a happier employee who will be back to work sooner and hopefully for longer. And also an employee who believes he/she is being looked after and who should give greater engagement. What’s more, trying a possible adjustment that fails can only be insurance against potential Employment Tribunal proceedings. At least you tried.
I’m often asked “What is a reasonable adjustment?” Exactly what it says on the tin! Essentially it’s any adjustment which might help a person with a disability, making it easier for them to stay in work or return to work after time off or making it easier for them to access promotion without unnecessary hindrance. But it must be reasonable. What is reasonable? I hear you ask. There is no hard and fast rule. It will depend on the size and resources of the organisation. The Fire service will have budgetary limits but probably more importantly it will have health limits in place to safeguard the public and other team members. If a mental illness causes a firefighter to undergo, for example, difficulty in making decisions, it might be advisable for that person not to lead in an emergency situation until his/her condition has stabilised and/or resolved. As always there will be a balance to strike between the best interests of the individual concerned and the organisation. In a field intricately linked with safety and team work safeguards on safety may be a legitimate reason for an adjustment to be declined.
There is no right or wrong answer to reasonable adjustments. It is, like many areas of law, a grey area. What you need to know is that if an adjustment is reasonable and you won’t allow it you may be breaking the law. And if you decline to make an adjustment for whatever reason you must document the steps taken to reach that decision if you want to be able to justify your decision to not make the adjustment and avoid liability.
So where do you go for more help? I am an expert in disability discrimination in the work context and with a particular emphasis on mental health. There’s not much I have not seen or advised on. I’m only ever a phone call away. For free resources the Occupational Health adviser for your workplace may be able to come up with some excellent proposals for adjustments. Ask the employee who is asking for adjustments what might help. It seems like a no-brainer but it’s one that often falls between the cracks.
Check out the free resources on disability online at the Equality and Human Rights Commission website http://www.equalityhumanrights.com/. Their Employment Statutory Code of Practice provides an invaluable source of free advice and guidance in plain English and contains lots of practical examples. It can be downloaded and saved as a PDF for future reference here: http://www.equalityhumanrights.com/sites/default/files/documents/EqualityAct/employercode.pdf.
And if its mental health advice you are after look no further than the excellent website of the Mental Health Foundation (MHF) http://www.mentalhealth.org.uk/. The MHF leads on research around common and serious mental health conditions. Their website and guides offer a wealth of free guidance and advice to help dispel a lot of the unhelpful myths around mental illness.
If an all-round education on the subject is what you really want you can do no better than to come to one of our didlaw EDUCATION conferences. Visit www.didlaw.com/education.
Our next event, a one day course, Mental Health Disabilities and Stress at Work 2015, will take place in London on 21 October 2015. If you are a manager of people it will give you all the tricks and tools you need to successfully manage a mentally healthy workforce and reasonable adjustments around it. We promise not to let you leave until you are fully enlightened!
For more information, go to www.mentalhealth.org.uk