A recent survey conducted by Mental Health charity MIND found that over 20% of people with mental health issues are unaware their condition could be classed as a disability, and they could be missing out on legal protections or helpful adjustments at work.

Everyone’s mental health in the workplace is protected by several legal rights. These include the right to freedom of expression, and health and safety legislation which protects us from physical and psychological hazards. Perhaps the most pertinent piece of legislation that relates to a person’s mental health protection in the workplace is The Equality Act (2010).

Most people with ongoing mental health problems meet the definition of disability in the Equality Act (2010) The Equality Act says you have a disability if you have a:

physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.

Most mental illnesses may be thought of as an impairment based on the effects it has on a person. For a mental illness to be classed as ‘substantial’ it must be more than small or minor. Your illness will be ‘long-term’ if it:

• Has lasted for at least 12 months
• Is likely to last for at least 12 months
• Is likely to last for the rest of your life

Reasonable adjustments

If a person’s mental health condition falls under the protected characteristic of disability in the Equality Act (2010) they are entitled to request reasonable adjustments to their job or workplace to accommodate their disability. A reasonable adjustment aims to removes barriers to the job that may exacerbate a person’s mental health condition. Reasonable adjustments need to be considered carefully by employers using the following criteria to assess what is considered reasonable:

• How effective the change will be in removing the barrier the person would otherwise face
• The practicality of the adjustment
• The cost of making the adjustment
• The size and resources of the organisation
• The availability of financial support

Discrimination

Employers need to be mindful if employees are treated less favourable because of their mental health condition they could be prosecuted. Employers need to be fully aware that discrimination can manifest itself in several ways in the workplace. The Equality Act 2010 details many different types of discrimination covered under the Act.

Direct discrimination – Being overtly prejudice and/or seen to be denying somebody an opportunity whilst others are not because of a mental health condition.

Indirect discrimination – occurs when a set of rules or circumstances change for everyone but indirectly effect a person with a mental health condition.

Harassment- Blatantly being mistreated because of their protected characteristic. Quite often manifests itself as bullying in the workplace.

Victimisation- Happens as a result of an employee making a complaint about discrimination in the workplace and then not receiving the same opportunities they would have if they had not made the complaint.

Discrimination arising from disability – May occur through punitive measures taken due to an increased amount of absence because of a protected characteristic

Do employees need to answer questions about their mental health at an interview?

In most circumstances’ employees do not need to answer questions about their mental health before a job offer is made. However, there are some occasions where employers may need to ask certain questions.

• To find out whether someone can take an assessment for a job
• To find out whether someone requires reasonable adjustments to the application process
• To find out whether someone will be able to do tasks that are central to a job

Do employees need to tell you they have a mental health condition?

If employees want protection under the Equality Act (2010) because of a mental health condition they should tell their employer. However, they are not obligated to do so. If an employee generally feels cared for, valued, and works in an environment where mental health is discussed openly its likely mental health disclosure will be much higher among people.

Failure by employers to carry out their duty to support their employees with protected characteristics could result in grievance being raised and potentially an employment tribunal. Its therefore vitally important businesses protect themselves from these situations by creating workplaces cultures that openly support mental health at work.

*The information contained in this article is general legal information, not legal advice. We recommend speaking to suitable qualified legal specialists or a solicitor who will help you with your individual needs if required.

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