October 10 2018 is World Mental Health Day which is designed to educate, raise awareness and remove the stigma of mental health.
Mental health issues affect millions of people across the country and impact businesses and employees alike. Five million working days were lost due to work-related stress, depression or anxiety in 2016/2017 – with women in full-time employment nearly twice as likely to have a common mental health problem compared to full-time employed men (19.8% vs 10.9%)
Approximately 1 in 4 people in the UK will experience a mental health problem each year and according to recent figures, 15% of employees who disclosed a mental health issue face disciplinary procedures, demotion or dismissal. This may explain why only a third of 18 to 29-year olds are comfortable talking to their manager about mental health issues compared to almost half of people in their 40s.
Less than a quarter of line managers have received any training in mental health and it raises a number of important issues for those who may be dealing with discrimination in the workplace.
Hannah Parsons, principal associate solicitor at DAS Law, explains what people need to know if they feel they are being treated unfairly at work because of their mental health.
What legal protection is in place for people with mental illness?
There are a number of legal protections in place to support those with a mental health condition. If you have a mental health condition it may fall within the definition of a ‘disability’ within the Equality Act 2010. If your condition falls within the Act, you are protected from being put at a disadvantage in the workplace as a result of your condition, or something that arises from it, and your employer may also be required to make reasonable adjustments to remove any barriers to you being able to do your job.
How can you make sure you are treated fairly at work?
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 your ability to carry out everyday activities. ‘Long-term’, in this case, means that 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.
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 not discriminate against you and will be required to provide reasonable adjustments for your condition.
What counts as discrimination?
Workplace discrimination is when someone is treated less favourably or put at a disadvantage due to what is known as a ‘protected characteristic’. A disability is included within the definition of a protected 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 in which you might suffer such a disadvantage. For example, if your employer refuses to consider promoting you, or dismisses you when they find out you have a mental health issue or because of the amount of sick leave you have taken due to your disability, these situations could amount to unlawful discrimination. If you suffer from bullying in the workplace because of your illness, this is also a form of discrimination known as ‘harassment’.
While some 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 put you at a disadvantage because of your disability. For example, your employer has a policy that only those people who have taken no sick leave in the previous 12 months are eligible for an annual bonus.
Your employer may be able to establish a defence to this kind of discrimination if it is a ‘proportionate means of achieving a legitimate aim’. This means that your employer would need to show that their approach is appropriate to achieve their objective and that there is a genuine reason for wanting to achieve it. Nevertheless, your employer should give consideration to people with disabilities when deciding on a course of action that may be indirectly discriminatory.
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 highlight your employer’s ‘duty to make reasonable adjustments’ when they are aware of your condition and how it affects you.
‘Reasonable adjustments’ are changes to your working environment intended to alleviate or remove any disadvantage you might otherwise suffer due to your disability. A reasonable adjustment might be any number of things, depending on the illness you suffer from. For example, your employer might offer you more flexible working hours or the opportunity to work from home or even make physical changes to the workplace.
However, as the name suggests, employers 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.
How to get help
Whilst it is good practice for employers 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. Some employers are becoming more aware of the value of having ‘mental health first aiders’ in the workplace, however in many instances, 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 put in place reasonable adjustments if appropriate. If things don’t go well in terms of the way you are treated, then it is important that your employer has been made aware of your condition as their duty not to discriminate against you will not arise unless they knew, or ought to have known, about your disability.
If you think you are being discriminated against at work because of 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 and your workplace should have a process in place 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.