When you picture a ‘disabled’ individual, a mental disability might not be the first example that springs to mind. We all have a state of mental health, but the increasing prevalence of poor mental health and its possible recognition as a disability is something we should all be aware of. According to the World Health Organisation, 1 in 4 people will experience a mental or neurological disorder at some point in their lives.
In October 2017, Denim Stevenson and Paul Farmer published a Government-commissioned report setting out 5 “mental health core standards” which could be quickly implemented to promote a positive mental state in the workplace. This report can be accessed here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/658145/thriving-at-work-stevenson-farmer-review.pdf
Alarmingly, the report reads: “…the UK is facing a mental health challenge at work…Not only is there a big human cost of poor mental health at work, there are also knock on impacts for society, the economy and Government. Employers are losing billions of pounds…”
This distressing reality has significant Employment Law consequences which should be known to employers and employees alike.
Disability is a characteristic protected by the Equality Act 2010. A person has a disability if they have “a physical or mental impairment” which “has a substantial and long-term adverse effect” on that person’s “ability to carry out normal day-to-day activities” (Section 6(1), Equality Act 2010). Notably, a claimant does not need to establish a medically diagnosed cause for their impairment; the focus is on the effect of the impairment. So a person with a long term mental health condition may be recognised under the Equality Act as having a disability without them having received a medical diagnosis.
Consequently, if one member of staff discriminates or harasses another in relation to this characteristic (or any other ‘protected characteristic’ as defined by the Equality Act), the employer will be liable unless they have taken reasonable steps to prevent such conduct. The perpetrator may also be liable.
Employers should take care not to commit the following unlawful acts:
Direct discrimination: where a job applicant/employee is treated less favourably than others because of a disability (but note the reverse is permitted);
Discrimination because of disability: if a job applicant/employee is treated unfavourably because of something arising as a consequence of their disability without objective justification;
Indirect discrimination: where a provision, criterion, or practice is applied which disadvantages job applicants/employees with a shared disability in the absence of objective justification;
Failure to make reasonable adjustments: where a disabled job applicant/employee is placed at a substantial disadvantage and reasonable adjustments could have been made;
Harassment related to disability: where alarm or distress is caused to an employee/job applicant by another person which is related to their disability;
Victimisation: where a job applicant/employee is treated badly or subject to a detriment because they intend to make, or have already made, a disability discrimination complaint or other claim/action under the Equality Act 2010; and
Pre-employment health questions: where health questions are posed to job applicants without a prescribed reason.
If you are an employer, we can help you avoid falling foul of equality law, and assist you in assessing and defending any claims alleging that you have done so.
If you are an employee believing that you may have an Equality Act claim, we can assist you in assessing this, advise you on your next steps, and support you in taking them.
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