According to ACAS, “at least one in four of us will suffer from a mental health problem at some point in our lives”. A scary statistic, but scarier still is the prospect that this creates an annual cost for UK employers of £30 billion from both absences and “presenteeism” (i.e. turning up for work when you are not well enough). That amounts to a total of 91 million days lost every year from mental health problems alone, which have now overtaken all physical ailments as the principal cause of workplace absence in the UK.
This may lead some employers to think twice about hiring an applicant who has declared a serious mental health issue during the recruitment process. However, for many reasons it is important for employers not to fall into this trap. The Equality Act 2010 covers job applicants as well as employees, so rejecting candidates purely on the basis of their mental health issues may well amount to disability discrimination.
Below we have set out some tips for employers dealing with applicants who may have mental health issues at each stage in the recruitment process.
- Job specification / job description – It is important that these are made clear from the outset as this will form the foundation from which your selection criteria can be created. You should ensure that these do not include any unnecessary requirements that might unjustifiably exclude people with mental health issues. Ensure that you focus on what needs to be achieved rather than how the task should be done.
- Application form – Should you include a question about mental health on the application form? This is somewhat of a double-edged sword. Failure to ask about a mental health disability may make you liable for a failure to make reasonable adjustments if you “should have known” about the disability. However, at the same time, employers no longer have free rein to ask questions about disability at the pre-employment stage unless it is for one of the following main reasons:
- establishing whether the applicant will be able to perform a function that is intrinsic to the job;
- monitoring diversity; or
- promoting positive action.
This makes it more difficult to know for sure whether a particular candidate has a disability or not. Although you would not automatically be discriminating by just asking the question, if the application is rejected and he/she brings a claim for disability discrimination, the burden of proof would shift to you as employer to show that the reason for the rejection was not discriminatory.
- Assessment – Where you use assessment processes, ensure that they test only relevant skills and that the form of test you use will not cause particular difficulties to those with mental health condition http://www.employmentlawworldview.com/testing-times-for-employers-in-recruitment-assessments/.
- Selection – If you know or have reasonable grounds for knowing that an applicant has a mental disability, you should consider whether there are any reasonable adjustments that could be made to allow them to be considered for the job, e.g. flexible working hours, part-time work, job share, etc. Otherwise, refusing to shortlist them for interview may constitute a failure to make reasonable adjustments. If you do not undergo a proper selection process by gathering sufficient information, or if the outcome appears to be a foregone conclusion, you may face a claim of discrimination from the applicant. It is therefore very important that you plan the interview stage in advance, giving applicants the chance to mention any disabilities and to suggest adjustments which might help them overcome the effects of their problem. Very few of us know enough about mental health issues to have anything more than a knee-jerk reaction to them. That is not a good basis on which to make selection decisions.
Remember that the important factors to consider when deciding if an applicant is suitable for the job are: (i) the ability of individual to do the job; ii) whether any reasonable adjustment can be made; and (iii) whether (ii) would have any bearing on (i). Anything else is secondary.
- Medical checks – You may make employment subject to the applicant undergoing a satisfactory medical examination or assessment. However, if you do this, you must make sure that this applies to all candidates and not only those who are disabled. Limiting this to physically or mentally disabled candidates alone would almost certainly create an inference of discrimination.
As you will note from the above, mental health issues should always be handled delicately. However, provided you carry out a fair and proper recruitment process, you won’t go far wrong!