Avoiding mental health discrimination

Discrimination arises when an employer or co-worker treats someone differently based on one of the protected characteristics (age, disability, transgender status, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).

Discrimination due to mental health is a bit more difficult to define because, while mental health isn’t directly 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 (likely to last more than 12 months) and affect their ability to conduct day-to-day activities.

So for discrimination based on mental health to be unlawful, the mental health issue must be regarded as a disability. Discrimination cases have an unlimited fine and no qualifying service so can pose a risk to businesses.

Mental health discrimination may occur if the business does something (or fails to do something) to an employee with mental health issues – such as failing to offer a promoted post or penalising them for taking too much time off sick.

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. Such adjustments could include offering counselling, flexible working, a change in duties. Adjustments should be made in consultation with the employee and should be specific to their needs but this can be tricky to manage for small employers.  The key to avoiding a situation of potential discrimination is to communicate with employees. Make it easy for them to discuss concerns regarding their mental health and talk about what (if any) adjustment they feel might help.

If you have any concerns relating to managing mental health in the workplace contact us on 0800 9995 121.

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