Kirk Tudhope, Partner at Ledingham Chalmers, looks at Employer obligations with Mental health

Not all disabilities are visible — understanding the Equality Act in the oil and gas sector

It’s fair to say that the number of people classified as disabled under the Equality Act is likely greater than it initially appears.

Put broadly, under this legislation, a disability is any impairment that has an adverse effect on someone’s life, and is likely to last at least a year.

What’s more, the effect of any medication needs to be discounted. So, if we take the example of someone with diabetes, the question isn’t how they’d cope while taking insulin injections — for example — it’s what their symptoms would be like without them.

Mental health

And of course, disability isn’t restricted to physical conditions.

It also covers mental health, which can be far less obvious, with conditions falling into the definition of disability including autism, dyslexia and depression. And while these may not be as easily recognisable as some physical conditions, they are protected nonetheless.

For obligations to arise under the act, it is enough for the employer to have been clearly alerted to the possibility that the employee may be suffering from a disability. The employee doesn’t have to provide unambiguous medical evidence, and the employer can’t rely on their lack of specific knowledge or their own failure to carry out reasonable inquiries into somoene’s condition.

What could employers look out for?

When it comes to mental health, behaviours that might raise questions include clear low mood, or even any behaviour that’s simply out of character. For offshore workers in particular, employers may also be aware someone’s taking a particular medication, based on fitness for work medicals, which alerts them to a specific condition.

The good news is that mental health, and its impact on people’s lives, is increasingly better understood. And of course that applies to oil and gas as much as any other industry.

In fact some of the sector’s defining characters could potentially have an impact on people’s mental wellbeing, such as the isolating and stressful nature of offshore work, as well as recent economic uncertainty.

Positive discrimination

Normally, positive discrimination is unlawful; however, disability discrimination works differently from other so-called protected characteristics, such as race and gender, under the Equality Act.

To illustrate, if I decide that women are under-represented in the workplace, I can’t go on a female-only recruitment drive. However commendable my motivation is, this form of positive discrimination is unlawful as it blatantly discriminates against men.

That just isn’t the case with disability discrimination. In fact, positive discrimination in cases of disability goes well beyond that: it isn’t only permissible, it’s compulsory.

Employers are under a duty to make reasonable adjustments to help and support a disabled person in the workplace. Reasonableness relates to whether an employer has the resources to provide a certain change and also whether it is not excessively disruptive to either the role or the workplace. As any disability comes with different personal challenges for each individual such adjustments need to be managed on a case by case basis. For mental illness this may be adjustments to working hours or the ability to have ‘time out’ during periods where these issues are acute.

They must also avoid taking steps that disadvantage disabled persons unless they can demonstrate a clear justification for doing so. From an employers’ perspective, the bar in such cases can be set pretty high.

How does this sit with other duties?

Employers’ duties towards employees do not begin and end with the Equality Act. Other important duties include the health and safety of all staff. And this doesn’t always sit well with disability discrimination. For example if there are real concerns that an employee may be struggling in their job due to mental health challenges, from a “duty of care” perspective the employer may wish to remove them from the workplace.

However that runs against the Equality Act’s emphasis on ensuring those with disabilities stay in the workplace. These potentially conflicting duties will not always be easily resolved. As we’ve already mentioned, it may be a particular challenge in mental health cases with offshore workers. The obvious solution of removing anyone with these issues from this environment is only likely to be Equality Act-compliant in the more extreme and unusual cases.

What’s the best approach?

A balanced judgment call will depend on the exact circumstances, but the decision maker deserves clear support in the circumstances from the occupational health and their HR teams, as well as from legal advisers.

Apart from relying on clear and, where appropriate, robust advice from advisers there are other practical steps operators are considering. These include addressing issues of isolation by creating greater opportunities for offshore community events, such as sports or themed nights on the platforms.

This is commendable, but there also needs to be a willingness on the part of both employers and employees to openly discuss mental health issues.

The underlying principle here is that if we are clear on the challenges faced then we can better focus on the solutions.