Mental health issues impact many people. Whilst there is a growing awareness about how common mental health issues are, and public campaigns to reduce stigma, employers often mishandle employees who experience mental health difficulties or who have neurodiverse conditions (IE autism). Sadly, mental health issues are frequently dealt with in a different (and often less favourable way) to physical conditions.

Disability

Where mental health issues are serious enough, they may constitute a disability under section 6 of the Equality Act 2010. For a mental health impairment to qualify as a disability, it must meet certain criteria:

• it must have a substantial adverse effect on the person’s ability to carry out day to day activities;
• it must be long term.

Note that the focus is on the impact that the condition has on the person’s ability to carry out ‘day to day activities’. Social interaction, shopping, travelling on public transport and in crowds, sleeping and doing exercise are all ‘day to day activities’. So, when you are considering whether your mental health issue qualifies as a disability, consider whether it reduces your ability to do these sort of ordinary things.

The definition of “long term” under the Equality Act 2010 is ‘12 months or more’, or the type of condition that is likely to ‘recur’.

• So, if you are diagnosed with an anxiety disorder, and understand that it is likely to recur at different points throughout your life, that may well count as ‘long term’, even if one single episode doesn’t last 12 months.
• Equally, if you have autism and find some social interactions difficult, then this is an obviously ‘long term’ condition that will be lifelong.
• However, if you go through a shorter period of, depression (for example, after a relative dies), that won’t necessarily count as a disability.

If you are discussing your condition with your employer or occupational health, remember to focus on the above topics. Explain what it is that your mental health condition makes it difficult for you to do outside work as well as at work.

Reasonable adjustments

In certain circumstances, your employer may have a duty to make reasonable adjustments.

Firstly, it is important to identify what it is that means your mental health condition causes you difficulty at work. Is it an absence management policy, or a fear you will be dismissed if you take sick leave due to a mental health problem? Is it the amount of work? Is it a physical feature of the workplace itself? Is it a requirement to attend the office, rather than work from home?

If something like the above causes you a substantial disadvantage compared to people without your mental health condition, your employer might well have a duty to take reasonable steps to avoid this disadvantage. This is often referred to as a “reasonable adjustment”.

It is important to note that the duty to make reasonable adjustments is just that. It does not involve your employer doing everything possible to relieve you from the disadvantage. Instead, it involves doing what is reasonable. The employer is entitled to argue that some steps would be so expensive, disruptive or impractical that it is not reasonable to ask them to make them.

David, an estate agent, is diagnosed with an anxiety disorder that makes it harder for him to comply with his employer’s policy that all work must be done from the company office. A reasonable adjustment might be that David still must attend the office sometimes, and show clients around houses, but he can spend 2 days a week working from home. 

Sue, a teacher, develops a severe agoraphobia disorder that makes it impossible to be in busy places. She might ask her employer to make an adjustment that means she does not have to be in a room with more than ten children at a time. However, as this may be arguably impracticable, it would be hard to persuade a tribunal that this was a “reasonable step” the school should have taken.

Discrimination arising from disability

Where, because of something arising from a disability, an employer treats you unfavourably, then unless they can justify their treatment of you, it may be unlawful under section 15 of the Equality Act 2010.

For example:

Nick, a nurse, is diagnosed with post traumatic stress disorder (PTSD) and needs to take six months off work. His employer’s policy is that if more than 30 days of sickness absence are exceeded in a year, a formal attendance warning will be given and the employee will be given notice that they may be dismissed unless attendance improves. This happens to Nick a month into his sickness absence.

Nick’s sickness absence arose from his PTSD, which in his case amounts to a disability. He was treated unfavourably because of this. Unless his employer can show that the attendance warning was a proportionate means of meeting a legitimate aim, it will be found to have discriminated against him.

Whether something is a proportionate means of meeting a legitimate aim will depend on all the circumstances. However, employers must prove what aim they are seeking to achieve, and why it is proportionate to take that step, considering the impacts it has on the disabled individual concerned.

Practical tips for employees

Where employees suffer from mental health difficulties in the workplace, they should consider explaining their situation to their employer. If the employer doesn’t have knowledge of any disability, they won’t be under a duty to make reasonable adjustments and they will have a defence to a discrimination arising from disability claim.

• Employees should try to be clear about what it is about their condition that makes certain activities more difficult to do. This will make it more likely that the employer’s duties to make reasonable adjustments will be triggered.

• Employees should engage with an employer’s occupational health team, and provide access to medical and treatment records where possible.
• It is a good idea for employees to propose reasonable solutions to their employer about how their work could be changed. Whilst the duty to make reasonable adjustments falls on the employer, they may be more likely to comply if they are given a practical solution to the problems that an employee is facing.

• It is important that accurate notes are kept of any meetings about reasonable adjustments and mental health. If you speak to your manager orally, it is a good idea to take care to summarise what was said in an email. That way, if matters are not able to be resolved, then it will be easier to demonstrate that the employer failed to take reasonable steps when they were given the opportunity to do so.