Mental Health Discrimination in the Workplace: UK Legal Protections 

In the UK, mental health discrimination in the workplace is a growing concern as more employees speak up about their struggles with mental health issues. World Mental Health Day, observed on 10th October, provides an opportunity to reflect on the legal protections in place to safeguard employees from discrimination and to promote mental wellbeing in the workplace. This article will explore the legal framework surrounding mental health discrimination, including how the law defines mental health disabilities, employers' responsibilities, and steps businesses can take to prevent discrimination. 

Understanding Mental Health Discrimination 

Mental health discrimination occurs when an employee is treated less favourably because of a mental health condition. Discrimination can be overt, such as an employee being demoted or fired because of their condition, or more subtle, like being overlooked for a promotion or excluded from certain projects. In the UK, mental health conditions are protected under employment law, ensuring that employees with such conditions have the same rights as those with physical disabilities. 

The Equality Act 2010 

The primary piece of legislation that protects employees from mental health discrimination is the Equality Act 2010. This Act prohibits discrimination in the workplace based on several protected characteristics, including disability, which can encompass mental health conditions. 

For a mental health condition to be considered a disability under the Equality Act, it must: 

• Have a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. 
• Be likely to last for 12 months or more. 

Conditions such as depression, anxiety, schizophrenia, bipolar disorder, and post-traumatic stress disorder (PTSD) can all qualify as disabilities under the Equality Act if they meet these criteria. 

Types of Mental Health Discrimination 

There are several forms of mental health discrimination that are prohibited under the Equality Act. Employers should be aware of these different types to ensure they are not inadvertently discriminating against employees with mental health conditions: 

1. Direct Discrimination
   Direct discrimination occurs when an employee is treated less favourably because of their mental health condition. For example, if an employee with depression is passed over for a promotion despite having the necessary skills and experience, this could be considered direct discrimination. 
2. Indirect Discrimination
   Indirect discrimination occurs when a workplace policy or practice applies to all employees but disadvantages those with a mental health condition. For instance, a company might have a practice or policy of requiring all employees to work long hours, which could negatively affect someone with an anxiety disorder. If the policy cannot be justified as necessary for the business, it may be considered discriminatory. 
3. Discrimination Arising from Disability
   This form of discrimination happens when an employee is treated unfavourably because of something related to their mental health condition, rather than the condition itself. For example, if an employee is dismissed for taking time off work due to their mental health, this could be considered discrimination arising from disability unless the employer can demonstrate that the dismissal was justified. 
4. Harassment
   Harassment occurs when an employee is subjected to unwanted behaviour related to their mental health condition that creates a hostile, intimidating, or degrading environment. This could include derogatory comments or jokes about an employee's mental health. 
5. Victimisation
   Victimisation occurs when an employee is treated unfairly because they have made a complaint about discrimination or supported a colleague in doing so. For example, if an employee who raises concerns about mental health discrimination is then subjected to bullying or retaliation, this would constitute victimisation. 

Employer Responsibilities to Prevent Mental Health Discrimination 

Employers in the UK are legally required to take steps to prevent mental health discrimination in the workplace. This involves not only adhering to the Equality Act but also fostering a culture of inclusion and support. Here are some key responsibilities for employers: 

1. Making Reasonable Adjustments
   Under the Equality Act, employers are obligated to make “reasonable adjustments” for employees with mental health conditions to help them perform their job effectively. Reasonable adjustments might include: 

• Flexible working arrangements, such as reduced hours or the option to work from home. 
• Adjusting the employee’s workload or responsibilities. 
• Providing additional breaks or time off for medical appointments. 
• Offering access to mental health support services, such as counselling. 

The aim of these adjustments is to remove any disadvantages that an employee with a mental health condition may face compared to their colleagues. Employers should work closely with the employee to identify the adjustments that would best support their needs. 

1. Addressing Workplace Stress
   Employers also have a responsibility under the Health and Safety at Work Act 1974 to ensure the mental well-being of their employees by identifying and mitigating workplace stress. High levels of workplace stress can contribute to or exacerbate mental health issues, leading to absences and reduced productivity. Employers should conduct regular risk assessments to identify potential stressors and take proactive measures to create a supportive environment. 
2. Promoting Mental Health Awareness
   Encouraging open conversations about mental health can help reduce stigma and discrimination in the workplace. Employers should provide training to managers and staff on mental health awareness, including how to recognise the signs of mental health conditions and how to offer support. 

A clear mental health policy can also demonstrate the organisation’s commitment to supporting employees with mental health conditions. This policy should outline the company’s approach to making reasonable adjustments, handling absences related to mental health, and addressing discrimination or harassment. 

Legal Consequences of Mental Health Discrimination 

Failure to prevent mental health discrimination can have serious legal consequences for employers. Employees who believe they have been discriminated against can bring a claim to an Employment Tribunal. If the Tribunal finds in favour of the employee, the employer may be ordered to pay compensation, which could include financial losses as well as compensation for injury to feelings. 

In some cases, employers may also face claims for constructive dismissal if the employee feels forced to resign because of ongoing discrimination. Additionally, claims for personal injury may be brought if an employee’s mental health condition is caused or worsened by workplace discrimination or stress. 

Preventing Mental Health Discrimination: Best Practices 

To reduce the risk of mental health discrimination claims and create a more inclusive workplace, employers can implement the following best practices: 

• Develop a Comprehensive Mental Health Policy: A clear policy that addresses how the company will support employees with mental health conditions, make reasonable adjustments, and handle complaints of discrimination is essential. 
• Offer Mental Health Support Services: Providing access to Employee Assistance Programmes (EAPs) or counselling services can give employees the tools they need to manage their mental health. 
• Train Managers and Staff on Mental Health Awareness: Ensure that everyone in the workplace understands their role in preventing mental health discrimination and knows how to support colleagues with mental health conditions. 
• Encourage Open Conversations: Fostering a culture where employees feel comfortable discussing their mental health can help reduce stigma and discrimination. 

Conclusion 

Mental health discrimination in the workplace is not only unlawful but can also have a significant impact on employees’ well-being and productivity. By adhering to the Equality Act 2010, making reasonable adjustments, and fostering an inclusive and supportive work environment, UK employers can protect their staff from discrimination and ensure that mental health is treated with the same seriousness as physical health. With World Mental Health Day approaching, now is an ideal time for employers to review their mental health policies and take steps to ensure they are meeting their legal obligations. 

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

09.10.24