

Dealing with mental health discrimination at work

Luke Whitmore - Law on the Web

  1. 08 October 2015
  2. Employment
  3. 0 comments
Stressed woman at work

The 10th of October is World Mental Health Day, aimed at raising awareness of mental illnesses and supporting those who suffer from them. One problem that affects many people with mental health issues is discrimination in the workplace, but there are a number of legal protections aimed at preventing this.

If you have a mental health condition and think you are being put at a disadvantage in the workplace as a result, you may be protected under the Equality Act, which offers special protection for those with disabilities.

You may not consider yourself to be disabled, but according to the law, a disability is any long-term physical or mental impairment which has a substantial negative effect on everyday activities. ‘Long term’, in this case, means it has gone on, or is likely to go on, for at least 12 months, or will probably come back repeatedly. Whether or not it has a ‘substantial’ effect is based on how it affects you when untreated, so if you are on any medication or undergoing therapy to help with the condition, you should consider how it affects you without these.

As you can see, the legal definition of ‘disability’ is far wider than you might have thought, which means that you might be protected by the Equality Act if you have a mental health issue. This means that your employer must avoid discriminating against you and provide reasonable adjustments for your condition.

What counts as discrimination

Workplace discrimination is when someone is treated less favourably at their job due to what is known as a ‘protected characteristic’. A disability counts as such a characteristic, so any disadvantage you suffer at work due to a mental illness could mean you are being discriminated against.

There are a number of ways you might suffer such a disadvantage. If your employer treats you worse than other people because of your illness – for example, if they refuse to consider promoting you or dismiss you when they find out you have a mental health issue – this is what is known as direct discrimination. If you suffer bullying in the workplace over your illness, this is also a form of discrimination legally termed ‘harassment’.

While these types of discrimination are quite obvious, there are other, subtler forms that you might also experience, such as ‘indirect discrimination’. This is when policies and expectations that apply to everyone at work are more difficult for you due to your disability, thereby putting you at a disadvantage. This type of discrimination is sometimes legal if it is a ‘proportionate means of achieving a legitimate aim’, meaning that there is no other realistic way to do what needs to be done in this particular instance, but your employer should give consideration to people with disabilities when deciding on a course of action like this.

Changes in the workplace

If you are treated unfavourably in the workplace because of something arising from your condition, rather than the condition itself, this may be classed as ‘discrimination arising from disability’. For example, if you have an anxiety disorder, you may find it nearly impossible to focus on your work in a noisy environment such as an open plan office, if your employer then takes disciplinary action against you because of a drop in your performance, it may be unlawful discrimination. This situation may also lead to what is referred to as your employer’s ‘duty to make reasonable adjustments’.

‘Reasonable adjustments’ are changes to your working environment intended to alleviate or remove any disadvantage you might otherwise suffer due to your disability. So, for the above example, your employer might provide you with a private office or move you to a quieter area.

A reasonable adjustment might be any number of things, depending on the illness you suffer from; your employer might offer you more flexible working hours or the opportunity to work from home. However, as the name suggests, they are only required to do what is ‘reasonable’, depending on the resources of the company, how much the adjustments would help you, and the requirements of the role you work in. With mental health issues, it is likely that many of the adjustments will involve changes to working practices rather than specialist equipment, so expense is less likely to be an issue.

How to get help

While employers are expected to act if they have good reason to believe an employee is suffering from a disability, mental health issues in particular can be difficult to spot. Your employer and colleagues may have no idea that anything is wrong while you suffer in silence.

Therefore, it’s important to talk to your employer if you have been diagnosed with a mental health problem. This way they can work with you to ensure that you aren’t disadvantaged at work, and if things end up going badly then they can’t claim they didn’t know about the disability if you end up having to take legal action against them.

If you think you are being discriminated against at work for a mental health issue, you should first make a complaint to your manager or another appropriate representative of your employer. Should they fail to take action, you should register a formal grievance – your workplace should have a process for doing this. If you are still not satisfied with the outcome, you may need to seek specialist advice on making an employment tribunal claim.

If you need advice about discrimination in the workplace, we offer a legal advice helpline which you might find useful.

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