December 18, 2018
A report issued by the Government to mark World Mental Health Day in October estimated that almost 1 in 3 workers will suffer from mental illness in the course of their careers; so with over 10,000 people employed by housing associations across Wales, it is not surprising that there is an increasing drive to tackle mental ill health in the workplace.
However, as service providers, housing associations also have duties under the Equality Act towards their tenants and others who use their services.
Importantly, this includes a duty to make reasonable adjustments to things which put either physically or mentally disabled employees and service users at a disadvantage due to their disability.
What is meant by a disability?
Under section 6 of the Equality Act, a disability means a physical or mental impairment which has a substantial adverse effect on someone’s ability to carry out normal day-to-day activities. This impairment must be long-term, meaning it has lasted for at least 12 months or is likely to last that long.
What protection is there against disability discrimination?
Employees and service users are protected from direct and indirect discrimination, harassment, and detriment arising out of something linked to their disabilities. Organisations which fall foul of these anti-discrimination provisions can be taken to a court or Employment Tribunal and ordered to pay compensation.
Making reasonable adjustments for disabled staff and tenants
As an employer, a housing association’s duty is to identify any policies or practices which might put disabled employees at a particular disadvantage, and make reasonable adjustments to those policies or practices to try and mitigate this.
As a provider of goods and services, this test also applies in relation to housing association tenants and customers – but goes even further. This is because the duty to make adjustments applies to all those who want to use the housing association’s services – not just existing service users. This means that organisations have to anticipate in advance which of their policies might put disabled housing applicants at a disadvantage at any point.
In a mental health context, this can be more difficult to plan for than in the case of physical disabilities – particularly due to the fact that there is a very wide range of mental health conditions which can have different effects on different individuals.
Organisations should therefore:
Draw on their previous experiences of tenants with mental health issues when preparing and reviewing their policies, procedures, tenancy agreements and everyday practices.
Consider working with tenant “mental health champions” who will represent the interests of other service users and help organisations to understand when and how certain policies may put disabled users at a disadvantage compared to others.
Ensure that their policies are well thought-through and that they seek professional advice on whether they are likely to meet their Equality Act obligations.
Although the duty is only to do what is reasonable, it can be difficult to know where this line is and it is usually sensible to err on the side of caution, as the courts will closely scrutinise organisations’ practices when it comes to disability discrimination claims. Many organisations are choosing to be proactive and go beyond their statutory duties to assist those suffering from mental illness.
Why is the duty to make reasonable adjustments so important?
Unfortunately, mental health issues can contribute to other problems for tenants, which also affect their landlords. For example, research by English housing associations earlier this year showed that a third of tenants in rent arrears suffered from mental ill health, but also that the pressure of going through a recovery process and/or court proceedings is likely to exacerbate these issues. This often leads to the escalation of a dispute which could have been prevented or mitigated through the use of proactive and supportive policies. As well as the personal effects of such situations on the individuals, getting into court disputes with tenants suffering from mental illness or other disabilities can be costly and challenging for housing associations. These challenges need to be considered from the outset of the relationship.
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