Mental health discrimination at work

By understanding your responsibilities as an employer in relation to the mental health of your workforce, you can avoid making costly mistakes by treating someone unfairly because of their condition. Below we examine the difficult issue of mental health discrimination at work, from how this can arise to practical tips on building a supportive culture and preventing unlawful discrimination in the workplace.

What is mental health discrimination at work?

Mental health discrimination at work refers to circumstances in which someone is treated less favourably than others, or put at a disadvantage, because they suffer from a mental health condition that amounts to a disability.

Disability is one of nine protected characteristics set out under the Equality Act 2010 – others include age, sex and race – affording individuals who possess this characteristic protection from unfair treatment at work.

Under the Equality Act, ‘disability’ has a wide meaning, where it includes any physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

The impairment will be considered to have a long-term effect if it has lasted, or is likely to last, for 12 months or more, or is likely to recur. There is no statutory definition of ‘impairment’, but the guidance to the Act states that the term should be given its ordinary meaning, where regard should be had not only to any diagnosis, but also to the effects or symptoms experienced by the person.

If an individual can show that the impact of any mental health problems they suffer from amount to a disability within the meaning of the Act, and you treat someone unfairly because of that condition, or something that arises from it, you will be breaking the law. This is known as unlawful discrimination.

What are the different types of mental health discrimination?

There are a number of ways in which someone might be subjected to unlawful discrimination at work by reason of their mental health. Some types of discrimination are quite obvious, whereas others are much harder to detect.

Under the 2010 Act there are six different types of disability discrimination, where the Act specifically protects against the following:

Direct discrimination
Discrimination arising from disability
Indirect discrimination
Failing to comply with the duty to make reasonable adjustments
Harassment
Victimisation

Direct discrimination refers to overt prejudicial treatment because of a disability, whereas discrimination arising from disability refers to where someone is treated unfavourably in the workplace because of something relating to their condition, rather than the condition itself.

Indirect discrimination is much more subtle. This is where a provision, criterion or practice that applies equally to everyone puts someone who suffers from a disability at a particular disadvantage when compared with others.

Both indirect discrimination and discrimination arising from disability can, in certain limited circumstances, be justified. They are also often linked with the duty to make reasonable adjustments to alleviate or remove any disadvantage that the treatment may cause. A failure to make reasonable adjustments can, in itself, constitute a form of discrimination, although there may be instances where reasonable adjustments cannot be made.

Harassment and victimisation, however, will always be unlawful. Harassment is where someone is persecuted because of their disability, whilst victimisation is the mistreatment of a person because they have made a complaint about harassment or mental health discrimination at work.

What are examples of direct mental health discrimination?

Direct mental health discrimination at work is where someone is treated less favourably than others because of their disability. An example could be where an employee suffers from bipolar disorder and they are denied any opportunities for training or promotion because of this.

This would also be the case even if the employer thought the employee had a mental health problem, or they are associated with someone who has a mental health problem, for example, their spouse or partner. These situations would be described as discrimination by perception or discrimination by association.

By contrast, discrimination arising from disability could arise, for example, where someone is disciplined because they have been repeatedly absent from work with depression. In these circumstances, the person has not been treated less favourably than someone else at work because of their disability, but because of something arising out of their disability, ie; the time taken off sick.

What are examples of indirect mental health discrimination?

Indirect mental health discrimination at work is where there is a policy or practice that applies to all members of staff, but a person suffering with a disability is put at a particular disadvantage because of this.

An example of indirect discrimination could be where all employees are required to work late shifts, but a particular employee suffering with schizoaffective disorder needs to take medication that causes tiredness at night. This is likely to be indirect discrimination if that employee is unable to work a late shift due to feeling too tired, and is disciplined because of this.

Can mental health discrimination at work be justified?

There are some circumstances in which indirect mental health discrimination at work can be justified, but only if you can show that your treatment towards a disabled employee is a ‘proportionate means of achieving a legitimate aim’.

The Equality Act does not define what constitutes a ‘legitimate aim’, but this could include the health and safety of staff, the needs of the business and needing to make a profit. However, economic reasons alone are not enough. An employer cannot justify discrimination by saying it is cheaper to discriminate, although costs can be taken into account as part of the overall justification process.

The discrimination must also be proportionate, where it must be fairly balanced against the disadvantage suffered by someone at work. This means that it must be appropriate and necessary. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination.

An employer can also justify ‘discrimination arising from disability’, but again only if they can show there was a good reason for this treatment, and they did not know or could not reasonably have known that the person had a disability.

What is an employer’s duty to make reasonable adjustments?

Under the Equality Act 2010, as an employer you are under a positive duty to make any reasonable adjustments in the workplace to alleviate or remove any disadvantage suffered by a disabled worker when compared to a non-disabled worker. This includes anyone suffering from a long-term mental impairment.

What is considered ‘reasonable’ will depend on the individual circumstances of the case, including what is likely to be effective in helping a disabled employee, the cost involved in making the adjustments and the resources available to you, as well as how practical it would be to make these changes.

A sensible starting point would be to review any fitness for work note from the employee’s GP. This will usually contain advice on what changes can be made at work to help with the individual’s recovery. In some cases, it may also be appropriate to refer the person for an occupational health assessment, where resources permit, to identify ways in which changes can be made to assist them.

It is important to tailor adjustments to the specific needs and abilities of the individual, and to be both creative and flexible in your approach. An employee suffering from depression may, for example, benefit from counselling or mentoring, whilst an employee suffering from bipolar disorder may benefit from a quiet working space and regular rest breaks.

Other examples of reasonable adjustments could include a phased return to work following long-term sick leave, as well as a change to a person’s working arrangements, such as amended duties or altered hours. It could also include re-deployment to a different type of work.

In many cases, by making simple adjustments to the way in which someone works, especially by alleviating work-related stresses and creating a healthier work-life balance, you should be able to discharge your duty under the Act.

Can an employee be dismissed due to mental health issues?

It may be possible to fairly dismiss an employee who is no longer capable of carrying out their job role because of mental health issues. That said, prior to making any decision to dismiss you must first explore ways to alleviate or remove any disadvantage an employee may be experiencing because of their disability.

Given the special legal protection afforded to disabled employees, where employers are under a positive duty to make any reasonable workplace adjustments, dismissal should only ever be used as a last resort.

Dismissal because of a disability, especially where insufficient steps have been taken to help an employee carry out their job role, can amount to both unlawful discrimination and automatically unfair dismissal.

A dismissal will only be fair, or non-discriminatory, where an employee is unable to do their job because there are no reasonable adjustments that can be made to remove any barriers, and the person not being able to perform their duties is having a significant impact on your business. You must also always follow a full and fair disciplinary process before dismissing a disabled employee.

What are the consequences of mental health discrimination at work?

The consequences of mental health discrimination at work can be significant, both financially and practically. This could include the loss of a valuable member of staff, and the associated cost of recruiting and training their replacement.

By making some simple adjustments to enable an employee to continue doing their job is far less expensive than the costs incurred through having to recruit and train a new employee. It can also minimise your exposure to legal proceedings, where a disgruntled employee may have a claim for unlawful discrimination, unfair dismissal or a failure to make reasonable adjustments.

In some cases, a person’s mental health condition may have even been caused or contributed to by work-related stresses that could, in itself, expose you to a claim for breach of your duty to ensure the health, safety and welfare of your staff.

By approaching any grievances about mental health discrimination at work with compassion and understanding, and by exploring all possible ways to assist a disabled employee, you may be able to resolve any conflict internally and informally, without the need for legal proceedings.

Taking a proactive approach to managing an employee’s mental health can also produce a range of benefits for your business, including reduced sickness absence, greater staff engagement and higher staff retention.

Practical tips for the prevention of mental health discrimination at work

The following practical tips in preventing mental health discrimination at work can help to minimise any exposure to costly legal proceedings. These tips may also help you to avoid losing a potentially valuable member of staff:

Review any GP’s note to see what reasonable adjustments can be made to alleviate or remove any disadvantage caused by a person’s disability
Refer the individual for an occupational health assessment, where appropriate and resources permit
Ask the individual what changes they need to be made, as they are often the best experts of managing their mental health condition
Tailor any adjustments to the specific needs and abilities of the individual
Be both creative and flexible in your approach, but also be realistic about what you can offer
Regularly review any adjustments made to ensure that they are working
Where no reasonable adjustments can be made, and dismissal is unavoidable, always follow a full and fair process
Where a formal grievance is lodged by a disgruntled employee, again follow a full and fair process, keeping a clear paper trial of your decisions
Create a supportive working environment in which employees feel able to openly discuss their mental health issues without fear of reprisal
Take steps to create a psychologically healthy workplace to help mitigate the potential negative impact of work on your employees’ mental health