WE CAN DO BETTER TOGETHER - Mental Health, Discrimination and the Equality Act 2010

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C LA S P

WE CAN DO BETTER TOGETHER Mental Health, Discrimination and the Equality Act 2010

Practical guide for businesses and organisations August 2021

ABOUT CLASP CHARITY COUNSELLING LIFE ADVICE SUICIDE PREVENTION CHARITY

Founded in 2013, CLASP Charity has gained experience, insight and commendation from Government, NHS England, Public Health England, as well as senior individuals in regional and local authorities, such as the Mayor of London and West Midlands Combined Authority.

CLASP’s vision is to promote mental health equality and end discrimination due to mental ill-health disabilities. Our mission is to advise, empower and inspire people, businesses and organisations across the country by promoting mental health equality for all:

CONTENTS Foreword..............................................................................................................4 Perspective & Acknowledgements..............................................................6 Executive summary.........................................................................................8 Introduction......................................................................................................10 Background....................................................................................................... 12

Creating universal knowledge of the legal rights of people with mental ill-health disabilities.

Advise businesses and organisations to provide a reasonable adjustment for people with mental health disabilities.

Providing our mental health equality Prevent, Promote and Support (PPS) model to end discrimination for employees and the public.

Supporting mental health and wellbeing in communities via employers and service providers.

Why take action?.............................................................................................14

CLASP offers a platform to champion mental health equality for employers and service providers via:

Getting started.................................................................................................30

– support and inclusion – inspiration and encouragement – sharing and collaboration enabling all parties to work in unity.

By empowering individuals and focusing on engaging communities, CLASP aims to create positive change for a healthier society, reduce the stigma associated with mental health and wellbeing, improve the lives of people experiencing mental ill health and prevent suicide.

Legislation......................................................................................................... 19 Call to action.....................................................................................................26 How to get there .............................................................................................28 Spotlight on change...................................................................................... 29 Understanding the benefits......................................................................... 31 Where to get more help.................................................................................32 Learning & development.............................................................................. 34

To learn more contact hello@claspcharity.com

If you need help relating to your mental ill-health disabilities or vulnerabilities, please seek assistance or support from the following organisations: • • • •

NHS 111 at www.111.nhs.uk or call 111 Samaritans at www.samaritans.org or call 116 123 Counselling Directory at www.counselling-directory.org.uk Helpline Partnership at www.helplines.org/helplines

All are there to assist you and everyone with mental ill-health disabilities.

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FOREWORD The Right Honourable Sir Norman Lamb

Former Minister of State for Care and Support / MP Chair of South London and Maudsley NHS Foundation Trust

I write to express my support for the work of Kenny Johnston and CLASP Charity to help organisations 1) meet their statutory duty to make reasonable adjustments for those with mental ill health and 2) recognise that this is an anticipatory duty - in other words, they must make reasonable adjustments to ensure access to services and support without waiting for someone to experience problems.

It is vital for organisations to be aware of their duty and to be able to take the appropriate steps to make reasonable adjustments - and I very much applaud Kenny and CLASP Charity’s efforts in highlighting the importance of this and working to ensure it is put into practice.

Jenny Edwards CBE

Chair of the Peoples Health Trust and Former Chief Executive Officer of the Mental Health Foundation

Tatum Matharu

Head of Thrive West Midlands Combined Authority

As Head of Thrive for the West Midlands Combined Authority, I am keen for this work to be amplified across the national footprint. Improving equality of access and support to service users is a priority area for the Combined Authority, where the impact of failing to comply with the anticipatory duty can lead to poor financial and wellbeing outcomes.

The Prevent, Promote and Support (PPS) model developed by CLASP, has been a really important element of our own internal equalities work stream. We have adopted the principles and embedded it into our equality action plan. It is recognised that the anticipatory duty element of the Equality Act has failed to be adopted, in the most part, for hidden disabilities such as poor mental health. It is important that we recognise the impact or the unintentional harms that may be caused by a process driven delivery of our services. Failure to adopt this approach not only means that we fail to comply with the legislation but furthermore, potentially poor outcomes for the individual.

Dan Barrett

Thrive LDN Director

Kenny Johnston and CLASP Charity work tirelessly to insist we become aware of our duties and rights under equalities law. It is shocking how many organisations fail to take steps to offer reasonable adjustments taking account of ongoing or severe mental illness. Yet mental health is the primary driver of disability worldwide and two thirds of people report they have experienced mental ill health in their lifetime.

We can certainly do much better than this, working together. We can change the experience of people living with mental ill health if every organisation takes the time to look critically at its own procedures. This isn’t a “nice to do”; getting this right is a legal responsibility. This document, and the Prevent, Promote and Support (PPS) model, offer an important way to accept and act in response.

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Thrive LDN is supportive of the work being undertaken by CLASP Charity, led by Kenny Johnston, to highlight the importance of the anticipatory duty within the Equality Act. The work gathered in this guidance to emphasise good and bad practice in this area and to highlight how organisations can improve their way of working is important, particularly as we begin to recover from the coronavirus pandemic.

This is a timely and helpful resource for all businesses and organisations to explore and see how the Prevent, Promote, Support (PPS) model developed by CLASP can be considered and put into practice. It is another example of CLASP Charity’s positive campaigning to embed equality of access and support for those with hidden disabilities, such as poor mental health.

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PERSPECTIVE & ACKNOWLEDGEMENTS ‘We Can Do Better Together: Mental Health, Discrimination and the Equality Act’ is dedicated to all who suffer from mental ill-health disabilities, as well as to the many who have lost their lives by suicide, in part due to the added distress caused by service providers and employers unaware of their legal anticipatory duty under the Equality Act 2010 (and previously, the Disability Discrimination Act 1995) to provide them with a reasonable adjustment.

Thank you to all the parties who assisted with this guidance, including:

Those service providers and employers that are failing in their statutory duty are discriminating against people who are already suffering personal distress via their mental ill-health disability, which is often incredibly difficult to describe or for others to comprehend. Placing the onus on a person with mental ill-health disabilities to raise the details of their illness, without invitation, could be comparably as impossible as asking a blind person to look closely or telling someone who is deaf to listen more carefully.

Without your insight, knowledge and time regarding this very important document, we would not have been able to highlight the ongoing discrimination of people across the United Kingdom by numerous service providers and employers – as well as the simple, positive steps we can all take together to make a difference and improve the lives of people who are experiencing mental ill health.

As a person with mental ill-health disabilities and a history of suicide attempts, I know how difficult it is to speak about my own mental ill-health disabilities, and I have experienced mental ill health discrimination first-hand which triggered my suicide attempts.

This guidance offers new perspective for service providers and employers to encourage more support for people with mental ill-health disabilities, as entitled through their statutory rights; whilst empowering those individuals experiencing mental ill health to obtain assistance and the support they are entitled to by law from institutions such as banks, schools, universities and many more.

Section 6 of the Equality Act 2010 states disability is a physical or mental impairment. As a society, we have adapted our everyday approaches to automatically offer reasonable adjustments to people who have sight, hearing or other physical disabilities, such as braille, sign language, lifts and ramps, along with other auxiliary aids via services providers and employers. The same legal duty and responsibilities on service providers and employers that lead to those everyday changes applies to providing reasonable adjustments for people with mental ill-health disabilities. The Equality Act 2010 clearly affirms that legal responsibility.

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Mayor of London – Sadiq Khan Governor of the Bank of England & former FCA CEO – Andrew Bailey NHS England CEO – Simon Stevens Public Health England CEO – Duncan Selbie Greater London Authority – Stephen Waring Health & Safety Executive – Katherine Fuller Chair of the Medical Advisory Service – Christopher Friend

Finally, I would like to thank my family, Sharon Boorer, Vera Aikins, Sir Norman Lamb, Jenny Edwards CBE, Sean Russell, Anna Sirmoglou, James Coburn, James Ludley, Dan Barrett and many more for supporting me during five years plus of research, including my own distressing personal journey. Special thank you to Kim Boyle for editing and designing this guidance, which is a testament of everything we discovered and achieved together.

Thank you all for providing me with reasonable adjustments to complete this important work.

Kenny Johnston Founder and CEO of CLASP Charity

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EXECUTIVE SUMMARY ‘We Can Do Better Together’ Practical Guide for Businesses and Organisation found critical information from five respected sources that highlighted the need for immediate action across public and private sector organisations. Additionally via work with the West Midlands Combined Authority, who implemented the ‘Prevent, Promote, Support (PPS)’ model and assisted them to obtain a Government ‘Disability Confident’ accreditation as an employer and service provider.

The five critical respected sources are: 1.

NHS report on COVID-19 and long COVID, highlighting concerns on the populations mental health from children to working age adults.

Visit: NHS England “NHS to offer ‘long covid’ sufferers help at specialist centres” 2.

House of Lords findings in 2016 on the Equality Act 2010 preventing discrimination of people with mental health and physical disabilities.

Visit: Parliament UK “The Equality Act 2010: the impact on disabled people - Chapter 5: Reasonable adjustment” 3.

Government briefing paper published November 2020 with an overview of disability discrimination law and explaining the legal duties to consider the needs of disabled people.

Visit: House of Commons Library “Research briefing: Disability discrimination” 4. Report by the Centre for Social Justice Disability Commission (March 2021) on the impact of the Equality Act 2010 for people with mental ill-health and physical disabilities.

Visit: Centre for Social Justice, document downloads “Now is the Time” 5.

YouGov study in November 2020 on the public understanding of the Disability Discrimination Act 1995 and Equality Act 2010.

Visit: YouGov “The YouGov Disability Study: 25 years of the Disability Discrimination Act”

The benefits of implementing the PPS model to obtain the Government ‘Disability Confident’ scheme for employers and service providers, which was launched in 2016, can be found via these links: Employers: GOV.UK “Guidance: Employers that have signed up to the Disability Confident scheme” Service Providers: GOV.UK “Guidance: Disability Confident service providers”

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INTRODUCTION Mental ill health is a disability

The Equality Act 2010 recognises disability as a human characteristic that is protected from discrimination.

It defines someone as having a disability based on the following: They have a physical or mental disability or impairment, and; The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Additionally, the Equality Act confirms there is a legal duty on public and private ‘service providers’ to protect people with mental ill-health disabilities from discrimination in the workplace and across wider society.

It is unlawful to discriminate against any person because of a protected characteristic, including disability.

It is also unlawful to indirectly discriminate against disabled people.

If a disabled person is treated unfavourably because of something arising in consequence of their disability, rather than their disability itself, and this cannot be justified, it will be unlawful.

Across government, public, private and voluntary sectors, and in our local communities, the organisations that influence our daily lives have the potential to play a proactive role in improving people’s mental health.

By promoting the ‘anticipatory duty’ of the Equality Act, employers and service providers can provide assistance and support for people with mental ill health. This approach has been used to support people with other disabilities and protected characteristics and shown to improve lives.

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WHAT ARE PROTECTED CHARACTERISTICS? It is against the law to discriminate against someone because of:

Everyone has a role to play in creating a healthy society

• Age • Disability • Gender reassignment • Marriage and civil partnership • Pregnancy and maternity • Race • Religion or belief • Sex • Sexual orientation These are called protected characteristics.

WHAT IS THE ANTICIPATORY DUTY? The duty is ‘anticipatory’ which means service providers cannot wait until a disabled person wants to use their services, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need.

WHAT IS A SERVICE PROVIDER? The term ‘service provider’ refers to anyone who provides goods, facilities or services to the public or to a section of the public, whether or not they are paid for or not.

WHAT IS AN EMPLOYER? The term ‘employer’ refers to a person, company, or organization that pays people to work for them.

Everyone has a role to play in creating a healthy society. One that is inclusive and supportive, empowering disabled people to obtain support and live fulfilling lives.

Together, we all reap the benefits.

A healthy society is one that flourishes.

Where individuals can realise their full potential, cope with the stresses of life, be productive and make meaningful contributions to their communities.

At different times in our lives our ability to contribute may vary, but it is an ideal that we must all strive towards, for the lasting benefit of individuals, society and the economy.

Similar to physical health, when we experience mental ill health, how we think, feel and act can be affected. It impacts on our ability to make decisions and interact with others.

Everyday activities that a healthy person takes for granted become a challenge.

Its impacts go beyond the person who is suffering, often affecting their family and friends who can struggle while trying to understand how to help.

In the very worst circumstances, life can feel unbearable, and often it takes a community of understanding and supportive individuals and organisations and careful communication to begin improving mental ill health in the long term.

Through the Equality Act 2010, and its recognition of mental ill health as a disability, there are mechanisms in place for service providers and employees to take the lead and proactively offer more support, sooner, to people experiencing mental ill health.

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BACKGROUND Mental ill health is rarely recognised as a disability Over a quarter of a century has passed since the Disability Discrimination Act was introduced. It is over a decade since the Equality Act 2010 became law. While the legislation has gradually changed, progress towards greater equality and fairness for disabled people has been challenging. Due in part to service providers and employers misunderstanding their legal duty and requirements.

Sadly, the number of people with mental ill health suffering distress and discrimination is increasing due to service providers failing to provide the reasonable adjustments that are required under both legislations.

As a result, the risk of placing people with mental ill health in crisis or worse is multiplied.

In the UK, we recognise the importance of embracing social differences and enabling and supporting people with disabilities. In 2010, the Equality Act was introduced to legally protect people from discrimination in the workplace and in wider society.

The Equality Act 2010 replaced earlier legislation that had addressed discrimination based on sex, race and disability.

Today, most service providers and employers have a policy acknowledging the importance of equality. Such policies enable their employees to consider other individuals in their day-to-day work and when shaping new services.

Most employers and service providers will refer to the protected characteristics identified in the Equality Act 2010: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex Sexual orientation

Only around 59% of adults with a mental health disability feel the Equality Act (2010) does enough to protect their rights

Generally, it is fair to expect when dealing with a public organisation or respected private business, company, or voluntary service, that there will be measures in place to ensure someone with a disability, or limitation that impacts their capacity to use a service as intended, is not disadvantaged.

This could mean, for example, when providing written information to someone with an eyesight impairment, documents would be offered in larger print, braille or other alternative products that enable the same information to be shared with this individual as someone who has good eyesight.

Unfortunately, when it comes to taking proactive actions to respond to disabilities, mental ill health is rarely considered. Some of the reasons may seem obvious: 1. Mental ill health is a broad term, even with the best intentions it can be hard to know how to begin doing the right thing.

2. There is significant stigma and a history of bad experiences surrounding mental health.

3. The growing spotlight on the importance of maintaining good mental health and its challenges has helped more people feel confident to open up, but for others, discussions with friends and family are still very difficult.

4. The idea of raising mental health as an issue with a service provider or employer is likely to be hugely stressful, if not impossible, for someone already struggling with mental ill health.

Recognising mental ill health as a disability, is the first proactive step everyone can take towards greater equality and fairness for people with mental ill health.

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Half say current legislation does not protect disabled rights in the UK Do you think the current legisation is robust enough to protect disabled people’s rights? (% of 1,008 UK adults with a disability of working age)

51 30

20 Yes

No

Don’t know

YouGov Disability Study: 25 years of the Disability Discrimination Act (2020)

A recent study by YouGov found that a decade on from the Equality Act 2010, over half (51%) of people asked felt existing legislation is not robust enough to protect the rights of the disabled. This opinion is consistent among the different groups and types of disability included in the study.

Only one in five (20%) of disabled adults think that the Equality Act 2010 in its current form does enough to protect their rights. Six in ten (61%) adults with learning, social or memory disabilities do not feel legislation currently in place protects their rights – a view shared by almost as many (59%) with mental health disabilities and half (52%) of those with visual or hearing disabilities.1 The YouGov study highlights that numerous employers and service providers are not aware or sharing information of their legal responsibility under the Equality Act 2010 anticipatory duty. As a result, it could be a main factor in the increase of people with mental ill-health disabilities and those experiencing a mental health crisis. Noticeably blind, deaf and physically disabled people were not found to be suffering due to the anticipatory duty being breached.

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WHY TAKE ACTION? Employers / Business

Communities thrive when individuals are healthy and empowered While taking the lead in becoming a healthier and more socially responsible business or organisation will certainly benefit individuals and our society, it is equally valuable for your own workplace.

Socially responsible activities can help forge stronger bonds between employers and employees, service providers and clients, while boosting morale and helping everyone feel more connected with the world around them. Positive experiences engender loyalty with the people who use those services. This leads to greater brand recognition, enhances service provider and employer reputations, and attracts employees, customers or clients.

Collectively aspiring to create a healthy society presents many opportunities to have a real and rewarding impact on our families and communities and the lives of the people around us.

Are adults with disabilities concerned for their jobs?

Public / Clients To what extent, if at all, are you concerned about your job security at the moment?

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Employees

(% of 429 UK adults with a disability who are working)

34

29

19

17

Not at all concerned

Very concerned

Fairly concerned

Not very concerned

YouGov Disability Study: 25 years of the Disability Discrimination Act (2020)

Have disabled adults requested adjustments from their employers?

Under the Equality Act (2010), employers in the UK have a duty to make reasonable adjustments for someone with a disability. These adjustments allow that person to do their job as well as someone without a disability. In your current job, have you requested reasonable adjustments for your disability or long term condition? (% of 429 UK adults with a disability who are working)

By providing reasonable adjustments to employees, it assists employees and by extension their employers and their clients, by empowering them during their journey.

A recent YouGov study found that a majority (57%) of those with a mental health disability are either fairly (33%) or very (24%) concerned about their job security compared to 42% who are not at all (14%) or not very (28%) concerned.

Local community

Yes

45

No

58

53

All adults

39

Men

50

49

Women

YouGov Disability Study: 25 years of the Disability Discrimination Act (2020)

A reasonable adjustment provides people with disabilities ways to access assistance and support. Most importantly it enables them to remove their disability barrier and effectively communicate with employers and service providers.

If employers and service providers want to take a proactive step to assist people with mental ill-health disabilities, it starts with providing them with the same legal rights as blind, deaf and other physical disabilities.

Under the Equality Act 2010, employers have a duty to make reasonable adjustments for someone with a disability.

This is to enable that person to overcome barriers they experience in employment so they could do their job as well as someone who does not have a disability.

With the lack of awareness of employees concerning their right to reasonable adjustments, it is fair to wonder, how likely is it that their employers are providing the duty to the public at large?

For many people, the ability to recover from mental ill health is strongly affected by the attitudes of people around them.

Acknowledging mental ill health as a disability is a massive proactive step towards normalising mental health conditions, helping to reduce stigma and empowering people with mental ill-health disabilities to speak openly.

Would we feel comfortable in a society that limited the voices of women, different races, religion, sexual orientation or other disabilities?

Why do we provide assistance to blind, deaf and physically disabled people; whilst placing the onus on people with mental ill-health disabilities to speak up for assistance and support?

Unfortunately, the lack of understanding around mental ill health and the stigma that fosters means people with mental health problems experience many different types of discrimination that compounds their distress.

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Are you a service provider?

The term ‘service provider’ is used to refer to all legal businesses and persons with responsibilities providing goods, facilities or services to the public or to a section of the public, whether or not they are paid for or not.

Which organisations are service providers?

There are large and small service providers and all have the same legal duties under the Equality Act 2010. For example, service providers across public and private sector organisations include:

It has a huge impact on self-esteem and confidence, and can prolong or even worsen conditions, leading to self-harm and suicide.

Recognising that one of the biggest barriers to recovering from a mental health illness can be the attitudes of other people, taking steps to open communication via reasonable adjustments and enabling everyone to be more supportive with people who are experiencing mental ill health has enormous potential to improve lives.2 The flip side of that is the risk of unintentional harm. Doing nothing will cause more harm to people who are already struggling. It is no small number of people who could be affected.

At least 1 in 4 people are estimated to experience a common mental health condition each year; 1 in 5 people have suicidal thoughts.3 More than a third (39%) of employees across the UK have experienced poor mental health due to work or where work was a contributing factor.4 By being proactive to consider and support mental ill health, we can prevent more unnecessary pain and feel pride in knowing our actions have helped.

All customer service departments for public and private sector organisations that interact with disabled people with mental ill-health disabilities.

All overseeing authorities of public and private sector organisations, including HMRC, the Financial Conduct Authority, Ombudsman Services, and so on.

Financial service providers such as banks, lenders, insurance, pension and other financial organisations.

Utility service providers including electricity, gas, water and other organisations.

Local authorities and councils providing council tax, parking services and other services in their local community.

Numerous other public and private sector organisations.

Who is a service user?

The term ‘service user’ refers to anyone who uses a service, and they are all legally owed a duty from their service provider to receive a reasonable adjustment.

Service users are:

customers of service providers users of facilities consumers or purchasers of goods people who benefit from or are subject to public functions people who are members, associates and guests of associations.

People who attempt, or want to use a service, benefit from a public function or join an association, but cannot, may also be service users. If they cannot use the service because a service provider fails to provide a reasonable adjustment it would demonstrate discrimination.

Does the duty to make reasonable adjustments apply even if the service provider does not know that the person is disabled?

The duty to disabled people applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members and so on. When disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served.

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LEGISLATION Must service providers anticipate every barrier?

Service providers are not expected to anticipate the needs of every individual who may use their service. They are required to think about and take reasonable steps to overcome barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face very different barriers when it comes to using services.

What are the most important requirements for all service providers?

Service providers must comply with the Equality Act 2010 anticipatory duty to provide a reasonable adjustment, and prevent their employees from discriminating against disabled service users, via the following steps: Establish a policy to ensure equality of access and use of their services by potential service users from all groups in society.

Communicate the policy to all staff, ensuring they know it is unlawful to discriminate when they are providing services.

Train all staff, including those not providing a direct service to the public, to understand the service provider’s policy, the meaning of equality in the legal context and their legal obligations.

Monitor the implementation and effectiveness of their policy.

Address acts of discrimination by staff as part of disciplinary rules and procedures.

Ensure that performance management systems address and promote equality to eliminate discrimination.

Maintain an easy to use, well-publicised complaints procedure.

Review practices to ensure that they do not disadvantage people with protected characteristics.

Consult customers, staff and organisations representing groups who share protected characteristics, including disabilities, about the quality and equality of their services and how they could become more inclusive.

Does the employee of a service provider have a responsibility to offer reasonable adjustments?

Under section 110 of the Equality Act 2010, an employee can be personally liable for unlawful acts committed in the course of employment where the employer is also liable. Under subsections (4) and (5) of section 110 it is an offence, punishable by a fine of (currently) up to £5,000, if an employee knowingly or recklessly makes a false statement about the lawfulness of doing something under the Equality Act 2010, including failing to provide a reasonable adjustment.

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It is important to remember that there are duties expected of public and private providers of services and the failure to meet them puts a business or organisation at risk of legal challenge.

There are various legal acts that look at discrimination and emphasise the importance of considering an individual’s mental health, including the Health and Safety Act 1974 and the Equality Act 2010.

The anticipatory duty of the Equality Act 2010 means it is not enough for a service provider to make the adjustment when asked by (or need to for) a disabled person. Rather, they must reasonably foresee disadvantage where it may exist, so that disabled peoples’ experience replicates, as close as possible, that of non-disabled people. The aim is to provide services that are user-friendly for all individuals regardless of their age, size or disability.

The House of Commons, Disability Discrimination Briefing Paper (November 2020) highlights that the duty requires employers, service providers, and others to whom the Equality Act 2010 applies, to anticipate the needs of disabled people and take steps to ensure their needs are met.5 For example, in the context of services, to make reasonable adjustments to provide access to a service as close as reasonably possible to the standard normally offered to the public at large: Braille for the blind.

Hearing aid support and sign language for the deaf.

Lifts and ramps for physically disabled people.

Yet, people with mental ill-health disabilities are often forgotten, despite the anticipatory duty to make reasonable adjustments requiring services providers offer: More time in decision-making.

Support of a family member, friend or carer in meetings.

Confidentiality or privacy to discuss concerns.

WHAT IS A DISABILITY? The Equality Act 2010 says that a person has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-today activities.

WHAT IS A REASONABLE ADJUSTMENT? Equality law recognises that bringing about equality for disabled people may mean changing the way services are delivered or employment is structured. This could be removing physical barriers or providing extra equipment or support for a disabled service user, worker or job applicant.

WHAT IS A ‘LEGAL DUTY’ TO MAKE REASONABLE ADJUSTMENTS? It is unlawful to discriminate against a disabled person by not making reasonable adjustments.

The duty to make reasonable adjustments requires service providers to take positive steps to ensure that disabled people have access. This goes beyond simply avoiding discrimination.

It requires service providers to anticipate the needs of potential disabled customers for reasonable adjustments.

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The anticipatory duty on providers of services, goods and facilities (including shops, banks, schools, universities and others) means they must not discriminate against a disabled person by failing to provide that service to a standard similar to that available to non-disabled people.

A survey of employers by the Centre for Social Justice (March 2021) saw 31% of respondents cite the costs of making reasonable adjustments as a barrier to employing disabled people. This is concerning given availability of Access to Work funding that aims to reduce these types of issues. Many of the adjustments disabled people require can be relatively inexpensive – for example, providing flexible working patterns.

A separate poll by Leonard Cheshire in 2018 also showed that 66% of employers believed that workplace adjustments were a barrier to employing a disabled person (up from 60% in 2017).

Reasonable adjustments are regularly made for people who are blind, deaf or otherwise physically disabled people, but rarely for people with mental ill-health disabilities. When compared to the cost to make those adjustments, how do you quantify the cost of failing to provide the same duty to people with mental ill-health disabilities?

Research conducted by the CIPD in 2018 found that only 32% of employers/organisations had used Access to Work, while 40% had not heard of it or the support it can provide for people with disabilities.

WHAT DOES IT MEAN THAT THE LEGAL DUTY TO MAKE REASONABLE ADJUSTMENTS IS ANTICIPATORY? The duty to make reasonable adjustments is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability, prior to an individual disabled person seeking to use the service, avail themselves of a function, or participate in the activities of an association.

Service providers should not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments.

They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment.

I know about it but my organisation down not use/have it I have never heard of it

Large (250+ employees) Medium (50 to 249 employees) Small (10 to 49 employees) All private sector employers

20%

30%

CSJ Disability Comparison/YouGov

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With employers are citing financial difficulties for the employees, it is also likely they perceive costs for making reasonable adjustments for clients with mental ill-health disabilities to be prohibitive.

Under the Equality Act 2010, there are two types of reasonable adjustment duties. First, the reasonable adjustment duty on employers which is based on removing disadvantage to an individual disabled person. The Equality and Human Rights Commission covers this in Chapter Two (Part Two). Second, is the duty on providers of services, goods and facilities (for example, shops and banks) must not discriminate against a person requiring the service by not providing the service.

The duty to make reasonable adjustments as set out in the Equality Act 2010 is not a minimalist policy of simply ensuring that some access is available to disabled people.

Rather it requires the service provider make adjustments, so far as is reasonably practicable, to enable disabled people to have the same approximate access as that enjoyed by the rest of the public.

The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large (and their equivalents in relation to associations or the exercise of public functions).

In 2016, The House of Lords Select Committee on the Equality Act 2010 and Disability said that even where there was awareness of the duty to make reasonable adjustments, understanding was often poor, including amongst disabled people themselves.

Duty to Make Reasonable Adjustments Sections 20 ‘Duty to make adjustments’ and Section 21 ‘Failure to comply with duty’ require those to whom the provisions apply, including employers, service providers, educational institutions, transport providers, and sports bodies, to take such steps as it is reasonable to have to take to avoid putting disabled people at a substantial disadvantage.

My organisation uses/has it

10%

The 2017 Centre for Social Justice survey found that of the businesses that stated the cost of reasonable adjustments was too high, only a fifth knew about Access to Work funding (21%).

WHAT IS THE MINIMUM REQUIREMENT TO MEET THE LEGAL OBLIGATIONS?

The Equality Act 2010

The use of access to work, private sector employers, UK, 2020

0%

This is concerning, given employers that are unaware of the financial support they can receive for making adjustments may also be less likely to employ disabled people.

40%

50%

60%

70%

80%

90%

100%

The Public Sector Equality Duty Section 149 states this particular duty applies to the public sector and covers age, disability, sex, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation.

It requires the public sector to: Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act. Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.

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Legal decisions When a public or private provider of services or an employer fails to meet the duties set out in the Equality Act 2010, they open that organisation up to legal challenge and potential financial penalties.

Many problems had occurred because of poor understanding, particularly among service providers, about the nature of the anticipatory duty. A significant problem was the failure to appreciate that adjustments may require what looks like more favourable treatment. Understanding was also particularly low in respect of ‘hidden disabilities’, which generally include mental ill-health disabilities.

Raising awareness of mental ill-health disabilities rights and how to complain about failings is an important route to challenging inaccessible or exclusive policies.

For instance, in a landmark Supreme Court decision in 2017, brought by Doug Paulley, a disability rights activist, the court ruled that bus operators are subject to Section 20 of the Equality Act 2010 regarding reasonable adjustments.

This meant the abolition of the ‘first come, first served’ policy, and bus drivers must do more than simply ask other passengers to vacate the space when it is required by a wheelchair user.

Failure to adhere to the anticipatory duty for people with mental ill-health disabilities can be deemed as:

Direct discrimination In-direct discrimination Discrimination arising from disability Harassment Victimisation

Therefore, it is vital service providers and employers ensure they have the appropriate anticipatory duty requirements in place for people with mental ill-health disabilities, just as they must for people who are blind, deaf and other physically disabled people.

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WHAT IS THE ACTUAL DUTY TO MAKE REASONABLE ADJUSTMENTS? For service providers and those exercising public functions it requires: 1) Where a provision, criterion or practice puts disabled people at a substantial disadvantage compared with those who are not disabled, to take reasonable steps to avoid that disadvantage.

2) Where a physical feature puts disabled people at a substantial disadvantage compared with people who are not disabled to avoid that disadvantage or adopt a reasonable alternative method of providing the service or exercising the function.

3) Where not providing an auxiliary aid puts disabled people at a substantial disadvantage compared with people who are not disabled, to provide that auxiliary aid.

WHEN DOES DISCRIMINATION OCCUR? One form of discrimination towards a disabled person occurs where a service provider fails to comply with a duty to make reasonable adjustments imposed on them in relation to that disabled person.

The following are recent examples of where legal action was taken against a service provider for failing to provide reasonable adjustments. Each resulted in financial settlements for the claimant.

Blamires v Local Government Ombudsman (LGO) In 2017, Mrs Blamires took legal action against the Local Government Ombudsman.

Mrs Blamires has disabilities and also dystonia that affected her speech. She referred a complaint against a county council to the Local Government Ombudsman and requested support because of her and her husband’s disabilities, including one or more face-to-face meetings rather than just using email. The Ombudsman lost the request, and turned down subsequent requests for a face-to-face meeting. As a result she was unable to present her case properly. The County Court awarded damages for failure to make reasonable adjustments, and also other breaches of the Equality Act 2010 and Data Protection Act 1998.

Damages awarded to Mrs Blamires amounted to £12,000.

Following the Court’s decision the Local Government Ombudsman introduced a new policy on reasonable adjustments for service users. It published the policy at www.lgo.org.uk and made all local government organisations aware. The policy outlined: The legal duties required of a service provider Highlighted that the duty is anticipatory – which means the service provider must think ahead about what adjustments might be needed, rather than waiting to be asked Examples of the type of reasonable adjustments that could be anticipated Steps to be taken to ensure all people know about how to ask for reasonable adjustments Factors to consider when responding to a request How to manage complaints about failures to provide reasonable adjustments.

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Allen v Royal Bank of Scotland (2009)

Mr Plummer v Royal Herbert Freehold Ltd (2017)

The Court of Appeal found a bank to be in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. Even if banking services could be accessed in alternative ways, such as over the internet, the policy of the Disability Discrimination Act was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches. The court awarded an injunction requiring the bank to install a lift to give wheelchair access, and awarded compensation. More information

A 64-year-old London man with Multiple Sclerosis has won his claim of disability discrimination against a management company after it failed to make reasonable adjustments to enable him to use the leisure club at the block of flats in which he lives, and indirectly discriminated against him because of his disability. In a wide-ranging judgment the Court found that Royal Herbert Freehold Ltd is a service provider, which means it has an anticipatory duty to consider the needs of disabled people in the use of the leisure club, which may include altering the physical features of that club.

Tse v Aviva Life Services (2019) Judgement included a declaration that Aviva had failed to make reasonable adjustments for disabilities – specifically failing to provide correspondence in accessible formats. Damages for injury to feelings of £3,300 for 3 instances of escalating seriousness.

The Judge declared that Aviva has discriminated against Ms Tse by failing to make reasonable adjustments, and in particular by failing to provide correspondence in accessible formats. More information Paulley v London Underground Ltd (2019) Judgement found discrimination, and combined damages of £1,800 for injury to feelings over two cases. District Judge Troy’s judgment goes into detail about the sorts of reasonable adjustments London Underground should take to inform disabled people of unplanned lift closures and how to respond when disabled people are stranded as a result. It is also clear that providing statistics and quotes about the number of disabled people from Doug’s Supreme Court case was influential. More information Lawson v Clemitshaw t/a Abbey Wharf Restaurant (2020) A declaration of discrimination, injunction for either a platform stair lift or a vertical platform lift, and combined damages for injury to feelings of £7,500, plus expenses. The claim was brought by Ian Lawson who is a wheelchair user. The restaurant is based on the first floor of a listed building in Whitby overlooking the harbour. It removed a stairlift when refurbishing the property but did not install a replacement means of access for mobility impaired customers. Despite numerous attempts by Mr Lawson to discuss with Mr Clemitshaw an amicable way forward the defendant did not respond.

Following the judgement the defendant subsequently agreed to contribute towards the costs of the expert witness that Mr Lawson paid, and paid travel and accommodation costs as well as reimbursing the court fees. More information

Alongside ruling that the management company had breached its duty to make reasonable adjustments and applied a discriminatory practice in what works it undertook, the Court also awarded Mr Plummer £9,000 in damages for injury to feelings, thought to be the highest award of its kind for such a claim.

More information Roads v Central Trains (2004) The Court of Appeal considered the reasonable adjustment duty for service providers.

The court said that the policy of the legislation is not a minimalist policy of simply ensuring that some access is available to the disabled. It is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.

Because of the way the reasonable adjustment duty for service providers is worded, the court had to consider whether the half mile road route was impossible or unreasonably difficult for disabled persons, not just for the claimant.

The Court of Appeal confirmed that this reasonable adjustment duty is anticipatory.

Also, in looking at whether it is unreasonably difficult for ‘disabled persons’ to use the service, the court said one would usually just look at people with the same kind of disability as the claimant. Accordingly, here the question was whether it was unreasonably difficult for wheelchair users to get to the other platform. (The railway company had argued that, for example, the footbridge would not present an insuperable problem to blind people.) More information Under section 110 of the Equality Act 2010, an employee can be personally liable for unlawful acts committed in the course of employment where the employer is also liable. Under subsections (4) and (5) of section 110 it is an offence, punishable by a fine of (currently) up to £5,000, if an employee knowingly or recklessly makes a false statement about the lawfulness of doing something under the Equality Act 2010, including failing to provide a ‘reasonable adjustment.’

We would like to thank Her Majesty’s Court and Tribunal Service, Solicitors Regulation Authority and all Judicial Services for their assistance. As well as insight to the ‘Equal Treatment Bench Book’ guide on ‘Reasonable Adjustments’.

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CALL TO ACTION Improve lives by promoting equality for physical and mental ill-health disabilities

These are three signs commonly used to tell disabled people that a service provider offers a reasonable adjustment. Have you ever seen a sign encouraging people with mental ill-health disabilities to ask for assistance?

People with mental ill health have the same legal rights as those with other disabilities; however, employers and service providers often place the onus on people with mental ill health to ask for support. In fact, the anticipatory duty of the Equality Act 2010 means support for people with mental ill health needs to highlighted proactively, to enable open communication throughout an organisation, without waiting to be asked.

Our vision is for all organisations to recognise their opportunity to improve lives by promoting equality for physical and mental ill-health disabilities in every way. As described by the legal duty, just as assistance and support is offered for people who are blind, deaf or otherwise physically disabled, people with mental ill-health disabilities would be offered the same level of support.

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Service providers would empower people with mental ill-health disabilities to engage with them in a way that does not cause distress. It would mean offering alternative communication methods, via reasonable adjustments, so that both parties can clearly communicate without causing harm to individuals.

To adhere with the anticipatory duty, service providers would be proactive and create workplace ecosystems that promote reasonable adjustments to people who have mental ill-health disabilities – the public who use their services, and their employees. By highlighting reasonable adjustments to everyone, it would enable open communication and reduce the risk of mental ill health and crisis, while also identifying and addressing any occupational health hazards in the service.

These employers would be offering rewarding places to work, where employees feel valued and able to connect with the people they engage with during work, whether as colleagues, a client or customer.

Employees would understand how actions they perform at work can impact on people with mental ill health, feel comfortable being proactive to help reduce harm, and feel pride knowing they are improving another person’s life.

What kind of experience would a person with a mental ill-health disability have when engaging with your organisation?

Without needing to ask for details, reasonable adjustments that assist or support disability would be openly offered.

There would be opportunities to express how to overcome barriers to using a service as it was intended. Individuals using a service would recognise and value the service provider for understanding disability stress and their commitment to equality. They may even tell others how it made them feel and promote the organisation’s brand.

In 2016, the UK government launched a new scheme entitled Disability Confident.

The scheme aims to encourage employers to recruit and retain disabled people and those with health conditions, and to encourage others to do as so as well by promoting awareness.

registered compared to the same scheme for employers having 20,270 registered organisations.

The Disability Confident scheme has not yet reached its full potential for people with mental ill-health disabilities. CLASP’s ‘Prevent, Promote, Support’ (PPS) model can help employers and service providers take advantage of the Disability Confident scheme, as it is intended, and ultimately deliver the benefits that the scheme aims to bring to the public.

Disability Confident awareness

Before taking this survey, have you heard of Government workplace scheme ‘Disability Confident’ (% of 1,008 disabled adults)

Yes Don’t know

However, while one in seven (14%) disabled adults have heard of the scheme, more than four in five (84%) have not. Awareness is better among younger respondents – but even here only around a quarter (24%) have heard of the programme, 75% have not.

Alongside the Disability Confident scheme for Employers, the UK Government runs a Disability Confident scheme for service providers. The Disability Confident scheme for service providers has 46 organisations

No

YouGov

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HOW TO GET THERE

SPOTLIGHT ON CHANGE

Consider how you can have a positive impact

Introducing a reasonable adjustment policy

Mental ill health must be acknowledged as a disability. Next, consider how your organisation and services it provides could be impacting people with mental ill-health disabilities. It is important to identify the actions needed to ensure the right support is offered to your service users or employees with mental ill-health disabilities.

This usually means reviewing your policies and procedures and designing adaptations – reasonable adjustments – to your regular practices to support an individual who is experiencing mental ill health. It sounds like a challenging process, though it can be simple with the help of an organisation expert in the field of mental health equality rights. CLASP Charity has created a solution called Prevent, Promote and Support (PPS) as part of its ‘Mental Health Equality for All’ concept that can help your organisation adhere to its legal duty and assist people with mental ill health.

Prevent, Promote, Support is supported by the findings of the House of Lords and guidance by Equality and Human Rights Commission, plus other public and private sector organisations, including NHS England and Public Health England, together with leaders in mental health equality such as Sir Norman Lamb, the Mayor of London, Sadiq Khan, West Midlands Combined Authority Mayor, Andrew Street, and other leaders who are committed to improving the lives of people experiencing mental ill health.

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CLASP Charity can help your organisation with a range of solutions, including: Foster an open and safe working environment where staff can confidently discuss mental ill health.

Undertake a mental ill health risk assessment to understand the potential for mental ill health in your organisation.

Depending on how your organisation works with employees and the service you provide, consider the reasonable adjustments you could make to respond to the risks and all likely scenarios.

Introduce a mental health policy within your organisation that protects employees and the people who use your service – it will also protect your organisation from the risk of legal action.

Make sure all employees and everyone who uses your services are aware of your mental health policy and how it applies to them.

Evaluate your mental health policy each year, observe whether attitudes about mental health are changing and look for ways to continually improve your policy and approaches.

Depending on what you and CLASP Charity learn about your organisation, it is likely you will want to adapt your procedures and respond to potential any gaps identified, where new policies and procedures need introducing.

West Midlands Combined Authority The West Midlands Combined Authority (WMCA) identified a fully supporting opportunity for its staff and service users to access assistance within their services easier and as a result, deliver positive equality outcomes for people with mental ill-health disabilities via CLASP’s Prevent, Promote and Support (PPS) model.

Once integrated with their own reasonable adjustment policy, it reinforced their duty towards people with mental ill-health disabilities across the West Midlands.

As a result, they recognised the impact daily interactions could have on a person with a mental ill-health disabilities without a reasonable adjustment. Subsequently they were able to obtain a constructive outcome by implementing PPS to reduce distress via miscommunication, which is often a barrier in delivering accessible services for people with anxiety, depression and other mental ill-health disabilities.

The Equalities Workstream at the WMCA applied PPS to enhance its proactive equality action plan. Additionally, they developed new principles focusing on people with mental illhealth disabilities and established, a framework which could be embedded throughout the organisation with ease.

Led by Anna Sirmoglou, their Equality and Diversity team conducted a complete review of the organisation’s policies to ensure, they had embedded the Equality Act 2010 ‘Anticipatory duty’ appropriately; appreciating the onus falls on all service providers as a statutory legal duty on public / private sector.

Having considered a wide spectrum of potential risks towards people with mental ill-health disabilities, they acknowledged via PPS the fundamental importance is ensuring the public were informed on how to request and obtain a reasonable adjustments via all communications portals (including their website, emails, etc); which would be the public’s initial interaction point for their staff and public to access assistance within WMCA services.

Subsequently the WMCA is now confident, their staff can adopt a person-centred approach to put all disabled service user and people without disabilities at the heart of each interaction.

Additionally, the WMCA recognise their staff wellbeing has also improved with the latest feedback showing greater willingness to discuss and act on mental ill-health and wellbeing concerns prior to implementing PPS.

Improving an organisation’s internal culture National Lottery Community Fund Some of the actions the National Lottery Community Fund has taken steps to improve how it supports people who have a mental health illness include: Adapting procedures: its online guidance for people applying to the fund has been improved to provide better advice and support for people who have a mental health illness.

Training staff: its training for new starters and ongoing development of its current staff now includes a focus on how to better support applicants who have a mental health illness.

Accreditation: working with the Business Disability Forum it has gained ‘Disability Confident’ accreditation and is continuously looking for new ways to improve process and policy.

Culture change: Working internally with the HR team at the lead it is increasing awareness of suicide prevention and addressing mental health issues.

Ensuring its legal obligations as an employer: working with HSE’s pilot to has addressed and confirmed it is meeting its legal obligations as an employer and is building into its policies more ways to build an inclusive working environment.

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GETTING STARTED Don’t wait, get started now!

COVID-19 has changed our society and left many people with severe and lasting physical health conditions. It has also increased the prevalence of poor mental health in the population.

According to NHS figures published in October 2020, almost 60,000 people may be suffering from long COVID in the UK and the number will have increased since the figures were released.6 In addition, one in eight adults has developed moderate to severe depressive symptoms during the pandemic and disabled people were more likely to experience some form of depression.

It is also clear more people are experiencing mental ill health as a result of lockdown and the pandemic. It’s altering how we interact with each other every day.

While the harm coronavirus has caused is undeniably tragic, it has also spurred many organisations to reflect on how they work and ways they can do things differently to reduce the risks of harm.

There is no guarantee that mental health problems will ease once the pandemic ends. This further suggests the coronavirus pandemic will increase disability prevalence within the working age population.

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Take the mental health equality beginners fitness test:  Does your organisation have a disability equality policy?  Does your equality policy identify mental ill health as a disability?  Do you proactively offer customers/ clients reasonable adjustments for mental ill health as a disability?  Are opportunities available to talk about mental health topics or concerns at work, for example in team meetings or open forums?

UNDERSTANDING THE BENEFITS Prevent, promote, support

The Prevent, Promote, Support (PPS) model is designed in line with the Equality Act 2010, as well as health and safety requirements, and it complements the Mental Health First Aid approach.

The primary purpose of the Prevent, Promote, Support model is to emphasise to service providers and employers that they must not discriminate against people with mental ill health disabilities, while also ensuring the public’s health and wellbeing is protected at all times.

 Are there named individuals who can be approached to discuss potential mental health risks and concerns?

With the support of the Equality and Human Rights Commission (EHRC), along with the Health and Safety Executive, the PPS model offers a statutory legal approach that any service provider or employer can implement to improve their policy and practices and meet their responsibilities as set out in the Equality Act 2010.

 Do you offer employees information about how to obtain a reasonable adjustment?

In comparison, the Health and Safety Executive carried out a review on Mental Health First Aid and found:

 Do you ask employees about attitudes to mental health?  Do you ask employees about experiences affecting mental health at work?

“A Mental Health First Aid (MHFA) training programme was first developed in Australia to train the public in providing help to adults with mental ill health problems.

Subsequently MHFA training has been taken up by other countries including Great Britain.

This review considered three research questions on the impact, influence and application of MHFA training in workplaces.

The review found that: There are only a small number of published occupational studies that have addressed mental health first aid (MHFA) and these had design and quality limitations.

There is limited evidence that the content of MHFA training has been adapted for workplace circumstances.

There is consistent evidence that MHFA training raises employees’ awareness of mental ill health conditions, including signs and symptoms.

There is limited evidence that MHFA training leads to sustained improvement in the ability of those trained to help colleagues experiencing mental ill health.

There is no evidence that the introduction of MHFA training has improved the organisational management of mental health in workplaces.“ Quotes taken from the Health and Safety Executive - Summary of the evidence on the effectiveness of Mental Health First Aid (MHFA) training in the workplace: www.hse.gov.uk/research/rrpdf/rr1135.pdf

Recently there has been an increase in undertaking MHFA training in workplace settings. In order to understand the strength of the available evidence on the effectiveness of MHFA in the workplace to improve the organisational management of mental ill health, a rapid scoping evidence review was undertaken.

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WHERE TO GET MORE HELP

References

Support and advice is available

Talk to CLASP. We are focused on engaging communities to create a positive change in the UK’s mental health and wellbeing.

By building knowledge and sharing information via our working network that includes NHS England, Public Health England, local authorities, voluntary organisations and private businesses we have been able to empower and inspire people across the country to make a difference relating to mental ill-health and suicide prevention.

In 2017, CLASP created Prevent, Promote and Support (PPS), by working with the Health and Safety Executive and focusing on legal duties identified in the Equality Act 2010. Through sharing this approach, CLASP aims to create mental health equality for all and end discrimination due to mental ill-health.

For more tools and advice on next steps contact hello@claspcharity.com

1 YouGov. The YouGov Disability Study: 25 years of the Disability Discrimination Act [internet]. London (UK): YouGov; November 2020. Available from: https://yougov.co.uk/topics/politics/articles-reports/2020/11/09/yougov-disability-discrimination-act-equality-act 2 Parle S (2012) How does discrimination affect people with mental illness?

Nursing Times [online]; 108: 28, 12-14.

C L A S P

3 Mind. Mental health facts and statistics. [updated June 2020; cited 2021 June 11]. Available from: https://www.mind.org.uk/information-support/ types-of-mental-health- problems/statistics-and-facts-about-mental-health/ how-common-are-mental- health-problems 4 Business in the Community. Mental health at Work 2019: Time to Take Ownership [internet]. Bsiness in the Community; October 2019. Available from: https://www.bitc.org.uk/report/mental-health-at-work-2019-time-to-takeownership 5 The House of Commons Library. Research Briefing: Disability Discrimination [internet]. London (UK): UK Parliament House of Commons Library; November 2020. Available from: https://commonslibrary.parliament.uk/research-briefings/cbp-9061 6 NHS England. NHS to offer ‘long covid’ sufferers help at specialist centres.

London (UK): NHS England; October 2020. Available from: https://www.england.nhs.uk/2020/10/nhs-to-offer-long-covid-help

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LEARNING & DEVELOPMENT

SIX KEY POINTS TO REMEMBER FROM THIS GUIDE Essential knowledge in order to provide reasonable adjustments to people with mental ill-health disabilities: 1. What is a mental ill-health disability under the Equality Act 2010?

The Equality Act 2010 states a person has a disability if they have a physical or mental impairment that has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities.

The term ‘mental impairment (disability)’ covers a wide range of impairments relating to mental functioning, including anxiety, depression, bipolar, learning disabilities, and more.

There is no need for a person to establish a medically diagnosed cause for their disability.

What it is important to consider is the effect of the mental impairment (disability) for the person with the disability and not the cause.

2. What is the anticipatory duty to provide a reasonable adjustment?

A service provider has a duty under the Equality Act 2010 to provide a reasonable adjustment and the duty is ‘anticipatory’. This means the service provider cannot wait until a person with a disability wants to use a service; rather, the reasonable adjustment must be established beforehand (and on an ongoing basis) for what people with a range of impairments (disabilities) might reasonably need, such as for people who are blind or deaf or have a mental ill health or physical or learning disability.

3. What does a service provider need to ensure in their business or organisation?

When a service provider reviews their service, they need to ascertain whether: - Their business or organisation has a policy, criteria and procedures to make reasonable adjustments that are communicated to all members of the public, including people with a wide spectrum of disabilities, including mental ill health.

- There are sufficient various means of communication, and no limiting physical features that would create a barrier to use by any members of the public.

- There is no absence of an auxiliary aid within the service that may place a person with disabilities at a substantial disadvantage compared with someone who is not disabled.

4. At what point does the anticipatory duty to provide a reasonable adjustments arise: Service providers should not wait until a people with disabilities uses their services before giving consideration to their anticipatory duty to provide reasonable adjustments. The service provider should anticipate the requirements of those with disabilities, as well as necessary reasonable adjustments, for their service to be available to people with or without disabilities.

For example, people who have sight or hearing disabilities are provided with notification in advance of interacting with service providers that highlights information is available by other means, such as braille, large print or audio.

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LEARNING & DEVELOPMENT

Likewise, people with physical disabilities are made aware of lifts and ramps to provide easier access to a service provider’s premises.

Failure to anticipate the need for an adjustment is deemed ‘disability discrimination’ under the Equality Act 2010 section 21 (2) and may create additional expense, or render it too late to comply with the Anticipatory duty to provide a reasonable adjustment. Furthermore, it may not in itself provide a defence to a legal claim in court for failing to provide a reasonable adjustment.

5. Is the anticipatory duty to provide a reasonable adjustments applicable if the service provider does not know that the person has a mental ill-health disability?

Because anticipatory duty to people with disabilities covers the public at large, it applies regardless of whether the service provider knows a particular person has a disability or whether it currently has disabled customers.

Whenever a person with a disability becomes a customer with a service provider, the anticipatory duty to provide reasonable adjustments places the onus on the service provider to already have taken all reasonable steps to ensure that they have mental ill health and physical disabilities reasonable adjustments available and highlighted to all.

6. Who is legally responsible for providing a reasonable adjustment to a person with a disability?

The anticipatory duty to provide a reasonable adjustments requires service providers to take proactive steps to ensure people with disabilities can access and communicate with the services. This goes beyond simply avoiding discrimination and requires the service provider anticipate the needs of potential disabled customers for reasonable adjustments.

The service provider’s employees may be held personally liable under the Equality Act for unlawful acts, such as failure to provide a reasonable adjustment. This may occur during the course of employment regardless of whether the employer has a defence against liability for the same failure. Therefore, it is important for service providers as employers to train their employees in how to provide a reasonable adjustment, for the benefit of their potential customers with disabilities, the employee and the service provider or employer.

Service providers are not expected to anticipate the needs of every person with a disability; however, asking if a reasonable adjustment is needed is required at the initial interaction, via application or communication with the individual, can assist everyone.

Additionally, service providers are required to give consideration and take reasonable action to overcome are barriers that may impede people with different kinds of disability – for example, people with disabilities such as dementia, mental ill health or mobility impairments, may face different disability barriers compared to people who are blind, deaf or otherwise physically disabled.

If you have questions from reviewing this ‘We can do better together: Mental Health, Discrimination and the Equality Act 2010’ practical guide, or wish to discuss your business or organisation’s needs to ensure you are not discriminating against people with mental illhealth disabilities, please contact CLASP Charity at hello@claspcharity.com

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CLASP charity hello@claspcharity.com www.claspcharity.com 2021

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