Discrimination is the term used to describe unfair treatment of another based on prejudice, character traits or differences. It's fair to say that HR departments are more than familiar with the woes of workplace discrimination and most companies now provide specialist training for managers that covers age, race and sex.
But what about mental health discrimination at work? It's a hot topic, so let's dive in.
What is mental health discrimination at work?
According to Mind's Disability Discrimination guide, mental health discrimination is where:
People with mental health issues are treated unfavourably in the workplace because of their mental health condition. This is called discrimination and, if you experience it, you may have the legal right to challenge it.
There's just one catch. For your claim to amount to mental health discrimination, you must prove that your illness is a disability. (Don't worry, we'll explain more later.)
What is the Equality Act 2010?
This is a UK law that protects you and your employees from discrimination and offers the right to challenge behaviours and treatment. The Equality Act 2010 protects you from discrimination when:
- Applying for work, in employment and when you leave your job.
- Using public services such as shops and hospitals.
- Dealing with organisations who carry out pubic functions like tax collection and crime investigation.
- In education (schools, colleges and universities).
- Purchasing or renting property.
- Signing up for private clubs and associations.
What is a disability?
The Equality Act defines a disability as a physical or mental impairment that has a substantial, adverse and long-term effect on your ability to carry out normal day-to-day activities.
An employee will need to have medical evidence that they have suffered with the condition for at least 12 months.
Is mental illness a disability?
Good news. According to the Equality Act 2010 and irrelevant of the mental health diagnosis, employers and employees qualify for protection so long as they can prove, of course, that their mental health disorder is a disability. Under UK law, a mental health condition is considered a disability when the claimant provides evidence that:
- they have a mental impairment – this could be a note from their doctor or therapist.
- it is long term – they have suffered with the same condition for over 12 months in one period.
- it substantially affects daily life – if they were without medication or treatment, their mental condition would have / continues to have a major effect on day-to-day tasks.
- it has an adverse effect – because of their mental condition they find it harder than others to perform tasks.
Let's put this into practice.
Cathy has depression
Meet Cathy, she's just started working for a new company. She's 3 days in and her anxiety is sky high. On returning from lunch, she began to fill out the health questionnaire that Jane (her company's part-time HR manager) had asked her to complete by EOD.
Do you consider yourself to have a long-term disability?
Her pen quivered. She's suffered from depression on and off for a decade and she's into her 14th month on anti-depressants. Sometimes her illness makes her bedbound.
NO, she scribbled.
You see, Cathy doesn't consider herself to have a disability as she is physically healthy. And even if she did, then she'd have to face the stigma. She'd learned quickly in previous employments to keep stum when it came to the mutterings of mental health or vulnerability.
Cathy needn't be worried or anxious about this. She would, however, be fully protected by the Equality Act because she has a mental impairment (depression) that she's had over 12 months, which has a substantial and adverse effect on her daily life.
As with any employment grievance, be sure to record dates and incidents within 3 months minus 1 day of when the last incident took place. For all impartial legal advice, contact ACAS.