Mental health discrimination

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

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. This means that discrimination based on mental health can only occur if the employee’s condition amounts to a disability.

Mental health discrimination may occur if, for example, an organisation does not offer an employee a promotion because they have depression but instead gives the promotion to a colleague who does not have depression. Another example is that someone with depression is penalised for taking too much time off sick.

The Equality Act 2010 requires employers and service providers to make reasonable adjustments if an employee is at a substantial disadvantage compared to other people who do not have a mental health problem. The adjustments might include counselling, flexible working hours, a change in duties and 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.

It is possible to dismiss an employee fairly if they can no longer carry out their job because of their mental ill health. However, the organisation must first have considered how to make adjustments for and support their employee if the issue qualifies as a disability. Dismissal should be the last resort.

This is a very delicate subject and can cause significant worry for both employers and employees alike. Contact us at enquiries@121hrsolutions.co.uk for advice.

Mental health discrimination

121 HR Solutions Ltd