I was delighted to participate in the Government’s Consultation on its Green Paper on Work, Health and Disability recently. By Michelle Chance, Partner and Head of the London Employment Practice at national law firm Bond Dickinson LLP.
A number of important action points for employers came out of our discussion, but, in my view, the Government needs to change its focus in certain key respects (outlined in this article) in order to make a real, sustainable difference that will filter down throughout society to employers and disabled employees. If Theresa May wants to achieve her objective of removing the unacceptable stigma that still attaches to people suffering from mental and physical health conditions, then we need to start the cultural shift by referring to these individuals by using positive, rather than negative language. I fundamentally disagree with the term “disability”.
If the Government is serious about changing society and employers’ adverse perceptions of people with physical and mental health conditions, then surely we should describe people with these conditions in more positive terms. Rather than labelling them as “disabled” and focussing negatively on what we assume (wrongfully in many cases) that they cannot do, we should view them as “differently abled” focussing instead on the positive contribution they can make to the workforce in different and diverse ways. We need to be enabling them, rather than disabling them further.
A lot of resources are being dedicated to providing work coaches for disabled people in job centres. Whilst all help and assistance is positive and to be welcomed, I worry that assumptions are being made that disabled people can only do the type of jobs which are predominantly advertised in job centres, which tend to be lower skilled, lower paid, menial, administrative type roles, rather than encouraging disabled people to strive to maximise their potential and opt for jobs in higher paid, professional sectors such as law, accountancy, medicine, architecture, banking, finance etc.
The Green Paper states that the Government wants the insurance industry to develop more affordable group income protection products, such as permanent health insurance that are tailored to meet the needs of small employers and make access to such products easier. Permanent health insurance benefits usually kick in after six months’ sickness absence and top up employees’ income to around 70 percent of full earnings. Isn’t this completely the wrong message for the Government to be sending out? Surely, we do not want our employees to get to a point where they have had to be off work sick for six months and will be unable to work for the foreseeable future. I would much rather the insurance industry makes private medical insurance more affordable for employers, so that people with physical or mental health conditions can access the medical services and support that they need quickly and swiftly. Early medical intervention will help them get back to work sooner. Once an employee has been off sick for four weeks or more, the chances of them returning to work are much slimmer, as they lose confidence and begin to feel alienated from the business.
The views of most employers at the consultation meeting were that the Mind passport or ‘wellness recovery action/assistance programmes’ (“WRAP”)” are helpful, in that they enable the employee and employer to sit down together, have an open discussion (which many managers find difficult to do) and draw up a document which sets out clearly the individual employee’s workplace triggers for mental ill-health, the symptoms to look for which may indicate that they are suffering from a mental ill-health episode, the support they require from their employer and the key people to contact in a crisis.
My personal view from acting for a number of employers who have employees with mental health conditions is that there needs to be a careful balancing act between early intervention for those with mental health conditions and not putting too much stress and pressure on line managers to spot the warning signs of a mental health crisis early, particularly where the symptoms described are generic, for example, intense periods of concentration on a piece of work, which could indicate suicidal thoughts. Most employers would just interpret this as an employee being focussed on a complex piece of work or concentrating hard to complete work within a specific deadline. It is therefore important that employers do not feel under undue pressure to agree to include in the passport or the WRAP all the symptoms the employee lists, particularly if they are very generic and cannot be easily spotted, as the employer owes a duty of care to those in line management positions not to put them under undue stress and pressure, as well as to the employee with a mental health condition.
Employees could be suffering from physical or mental health conditions which do not satisfy the legal definition of disability. Many conditions have not, or are unlikely to last for 12 months or more, particularly those suffering from stress as a short term response to a specific adverse life or work situation. Such employees need protection from unfair or discriminatory treatment, even though they are not legally classified as disabled. Employers should therefore not limit reasonable adjustments just to those who are legally disabled, as making reasonable adjustments, where they will make a real difference to the employee’s working life and the employer can afford to do so, is good for employees’ wellbeing and will assist employees to return to work sooner, rather than later and could prevent health conditions from turning in to long-term disabilities.
Recruiting and retaining disabled people and those suffering from health conditions is more problematic for SMEs, than larger institutions, as SMEs often do not have the necessary funds and resources to do so. In such circumstances, small baby steps from line managers in terms of attitude towards employees suffering from health conditions goes a long way towards supporting employees’ wellbeing and engagement and can make a huge difference. It is not all about big, elaborate gestures or spending lots of money or dedicating lots of resources to wellbeing initiatives. Whilst that is helpful, it is not always necessary or possible.
Sub-conscious bias training is incredibly important in helping employers to decide to recruit disabled employees and those with health conditions, if they are the best candidate for the job. It also helps employers to challenge assumptions they may make, which may not necessary be based on medical evidence. The difficulty is that good sub-conscious bias training is expensive, and in my view the Government should subsidise the cost of this, particularly for SMEs.
Key barriers preventing employers from recruiting and retaining employees with health conditions. During the consultation meeting, we also considered in detail some of the key barriers preventing employers from recruiting and retaining disabled and people with health conditions. The employers or potential employers may be worried about the potential amount of sickness absence such employees may have, or the amount of time they may need off work to attend medical appointments. There will be concerns about the pressure this puts on colleagues. Such decisions should be based on actual medical evidence, rather than assumptions. This is where subconscious bias training comes in.
It is also really important for employers to build strong collegiate workplace cultures, where colleagues pull together and help each other out whenever needed, whatever the reason, whether it is because employees are working flexibly due to childcare or eldercare commitments, or because they need time off for medical needs. It is about give and take and helping each other out when colleagues need it most. Having an agile work force can help contribute to this positive culture, although employers should remain aware that employees with mental health conditions may need more help prioritising their workloads and more regular contact and support, particularly if they work predominantly from home.
There may also be a fear amongst employers that putting employees with health conditions, particularly mental health conditions or those with visible differences in customer/client facing roles may put customers and clients off dealing with them, particularly if their behavioural patterns are unpredictable. This may particularly be an issue for employers in certain sectors where brand and image is paramount. Again sub-conscious bias training can be exceptionally important in helping employers realise that employing people with health conditions can build customer loyalty, both amongst disabled and able-bodied customers and clients. Having a diverse workforce which reflects the make-up of the society we live in can also help attract new clients/customers and win new business. As part of tender processes, many potential clients ask for organisations’ diversity statistics, which is not purely limited to gender, but also includes, amongst other protected characteristics, the number of disabled employees and could even be split between those with physical and mental health conditions.
Fear is driven by the unknown. Employers and potential employers need to lose the often misplaced assumptions and stop being scared of disabled employees, just because they are perceived as different to us. They should recruit and welcome disabled employees and those with health conditions into their workplaces, fully integrate and support them and see what they can really achieve. Disabled people are differently abled, they have different strengths and skills, alternative, creative ways of delivering business objectives, different views and perspectives which can invigorate businesses and fill gaps that employers did not even know they had in their business strategy or model. Employers should focus positively on what disabled people can do, rather than what they assume (often incorrectly) that they can’t do. When differently abled people are given the chance and support to realise their ambitions, they can develop and fulfil their true potential and very often surpass and exceed all expectations. They just need to be given the initial break and foot in the door, rather than having the door slammed shut in their face at the outset of the recruitment process. Doesn’t everyone deserve a fair chance to maximise their full potential, without prior judgment being cast on them, because of a protected characteristic?
