By Mark Bell, Regius Professor of Laws, Trinity College Dublin
One quarter of us will develop mental or behavioural disorders during our lifetime. For many people, this will happen when they are already in work and, without appropriate support, this can lead to job loss. We also know that the odds of being outside the labour market are nine times higher for those with an emotional or psychological disability compared to those without disabilities, thanks to research conducted by the Equality Authority and ESRI in 2012.
Being unemployed is generally viewed as detrimental to mental health. As well as the increased risk of poverty, individuals lose the social opportunities found in the workplace. The costs are also felt by businesses and society. Mental health problems are a leading cause of sickness absence. Those who cease work are likely to become dependent on social welfare benefits and this is a growing proportion of disability claimants in many industrialised economies.
It is clear that this is a complex social challenge that demands responses across multiple areas of policy. The law also has a role to play. Irish equality law already provides valuable legal protections for individuals. However, there is strong evidence of persistent labour market disadvantage experienced by people with mental health problems. Recent court cases also reveal that sometimes employers do not comply with their duties, and that some individuals can find it difficult to seek help.
The Employment Equality Act prohibits discrimination in employment on a range of grounds, including disability. This includes disabilities that arise from barriers connected to mental impairment. Many common mental health problems, such as depression or anxiety, have been held to constitute disabilities. Perhaps the most important element of this law is the duty on employers to provide reasonable accommodation. This encourages employers to think flexibility about the steps that can be taken to adjust the way in which work is performed in response to individual needs. Typical adjustments include temporary reductions in workload or hours; changes to a person’s role; access to counselling; or providing the opportunity to work from home. Often the direct costs associated with accommodation are low and there is evidence of long-run benefits to companies, such as increased productivity, less sickness absence and reduced staff turnover.
The obligation on employers is twofold. First, they need to ensure that good procedures are in place to gather all necessary information about the situation of an individual who may be absent from work, or who encounters barriers to performing their job. Secondly, they need to consider what steps can be taken to enable the employee to continue in work. Throughout this process, it is essential that the employee has a full opportunity to participate and to convey his or her views. This requires flexibility on the part of the employer. In November 2015, in Nano Nagle School v Daly, the High Court upheld a finding of the Labour Court that it was not sufficient for an employer to consider only measures that would allow the worker to return to their job in exactly the same form prior to their absence. The employer needed to consider whether the job could be reconfigured with changes to the worker’s responsibilities in order to permit their return. Employers should be reassured that the law only requires reasonable steps, taking into account the firm’s size and resources.
If the law offers a constructive mechanism to facilitate people with mental health problems to continue in work, then why does the data still suggest that many remain outside the labour market? In part, this might be because of the barriers that workers face when asserting their rights, such as having the emotional and financial resources to pursue a claim. In addition, we know that stigma continues to deter individuals from speaking about mental health problems in the workplace. A survey on Irish Attitudes to Mental Health in 2012 found that 57% believed that being open about a mental health problem at work would have a negative impact on job and career prospects.
Arguably the contribution of law can be enhanced. Section 42 of the Irish Human Rights and Equality Commission Act 2014 introduces a duty on public bodies to promote equality of opportunity and to protect the human rights of staff and service-users. This is still in the process of being implemented, but it holds potential to complement the individual rights already guaranteed. Experience elsewhere, including in Northern Ireland, has shown that public sector equality duties can play a part in encouraging organisations to take a planned approach to improving equality over time.
Many jobs are, however, found in the private sector. This is recognised by the UN Convention of the Rights of Persons with Disabilities (CRPD), which includes a duty on the state to promote disabled people’s inclusion in private sector employment. The Government is already taking steps in this area, such as the Comprehensive Employment Strategy for People with Disabilities. Yet it maintains that further legal reforms are required before it can ratify the CRPD. This is an increasingly isolated global position as 160 states have now ratified the Convention. Ireland is one of just three EU Member States yet to do so. Arguably, the state should now subject itself to international accountability in relation to the steps being taken to improve the inclusion of people with disabilities.