Mental health and discrimination

Increasingly employers are seeing a focus on mental health and potential discrimination.  Discrimination is when an employer or co-worker treats someone differently based on a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).

Discrimination relating to mental health is more difficult to define because, while mental health itself is not a protected characteristic, disability is. The Equality Act 2010 defines a disabled person as someone with a physical or mental injury. It must be substantial or long term (more than 12 months) and affect the ability to conduct day-to-day activities.

If an employee with mental health problems (which would be regarded as a disability) is treated differently at work because of their condition, this could be discriminatory. Discrimination cases at the employment tribunal have an unlimited award and there is no minimum service requirement for employees to make the claim. 

Direct discrimination is where an employee is treated unfairly as a direct result of their protected characteristic so if an employee is not promoted due to having a history of absence due to depression, despite having the right skills and experience, but someone without depression is given the promotion, and may have fewer skills or less experience.  The burden of proof for discrimination is on the employer – they have to prove they did not discriminate rather than the employee having to prove that they did. 

Indirect discrimination occurs when something which applies to everyone inadvertently disadvantages a person with a protected characteristic. For example, where an employer gives an attendance bonus for staff who have 100% attendance. This might discriminate against an employees whose absence is entirely related to a condition caused by a disability. 

The Equality Act 2010 requires employers to make reasonable adjustments if an employee is at a disadvantage compared to other people who do not have a mental health problem. The adjustments — for example, counselling, flexible working hours, a change in duties — should aim to remove any disadvantage suffered but should be realistic in balancing cost, effectiveness and practicality. Adjustments should be made in consultation with the employee and be specific to their needs.  

This subject is likely to be something which most employers will have to face and therefore it is important that managers are trained to deal with issues and to be able to provide support. 


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