How to deal with mental health discrimination at work

Saturday 10th October 2020 marks World Mental Health Day which aims to raise awareness of mental health issues and their impact on everyday life. This year, in particular, has been difficult for us all with many people being furloughed or losing their jobs entirely amidst lockdown.

Working from home has also impacted our mental health. According to results of a new survey by Nuffield Health, 80% of Brits feel that working from home has negatively impacted their mental health. This brings the whole issue of mental health to the fore.

Whilst awareness of mental health issues has risen, most employers do not acknowledge, understand, or know how to deal with the adverse impact working from home can have on their employees’ mental health.

Jade Harrison at DAS Law explains what people need to know if they feel they are being treated unfairly at work because of their mental health…

What legal protection is in place for people with mental illness?

There are a number of legal protections in place to support those with a mental health condition.  For example, your condition may fall within the definition of a ‘disability’ under the Equality Act 2010.

If so, you are protected from being put at a disadvantage in the workplace as a result of your condition, or something that arises from it, and your employer may also be required to make reasonable adjustments to remove any barriers to you being able to do your job.

How can you make sure you are treated fairly at work?

Whilst you may not consider yourself to be disabled, according to the law, a disability is any long-term physical or mental impairment which has a substantial negative effect on your ability to carry out everyday activities.

‘Long-term’ in this case, means that it has gone on, or is likely to go on, for at least 12 months, or will probably come back repeatedly. Whether or not it has a ‘substantial’ effect is based on how it affects you when untreated, so if you are on any medication or undergoing therapy to help with the condition, you should consider how it affects you without these.

The legal definition of ‘disability’ is far wider than you might think.  This means that you might be protected by the Equality Act if you have a mental health condition. It also means that your employer must not discriminate against you and will be required to provide reasonable adjustments for your condition.

What might be considered as discrimination?

Workplace discrimination is when someone is treated less favourably or put at a disadvantage due to what is known as a ‘protected characteristic’. A disability is included within the definition of a protected characteristic, so any disadvantage you suffer at work because of a mental health condition could mean you are being discriminated against.

There are a number of ways in which you might suffer such a disadvantage. For example, if your employer refuses to consider promoting you, or dismisses you when they find out you have a mental health issue, or because of the amount of sick leave you have taken due to your disability, these situations could amount to unlawful discrimination. If you suffer from bullying in the workplace because of your condition, this is also a form of discrimination known as ‘harassment’.

While some types of discrimination are quite obvious, there are other, subtler forms that you might also experience, such as ‘indirect discrimination’. This is when policies and practices that apply to everyone at work put you at a disadvantage because of your disability. For example, your employer has a policy that only those people who have taken no sick leave in the previous 12 months are eligible for an annual bonus

Your employer may, however, be able to establish a defence to this kind of discrimination if it is a ‘proportionate means of achieving a legitimate aim’. This means that your employer would need to show that its approach is appropriate to achieve its objective and that there is a genuine reason for wanting to achieve it. Nevertheless, your employer should give consideration to people with disabilities when deciding on a course of action that may be indirectly discriminatory.

Changes in the workplace

If you are treated unfavourably in the workplace because of something arising from your condition, rather than the condition itself, this may be classed as ‘discrimination arising from disability’. For example, if you have an anxiety disorder, you may find it nearly impossible to focus on your work in a noisy environment such as an open plan office.

If your employer then takes disciplinary action against you because of a drop in your performance, it may be unlawful discrimination. This situation may also highlight your employer’s ‘duty to make reasonable adjustments’ when they are aware of your condition and how it affects you.

‘Reasonable adjustments’ are changes to your working environment or methods intended to alleviate or remove any disadvantage you might otherwise suffer due to your disability. A reasonable adjustment might be any number of things, depending on the condition you suffer from. For example, your employer might offer you more flexible working hours or the opportunity to work from home or even make physical changes to the workplace.

However, as the name suggests, employers are only required to do what is ‘reasonable’, depending on the resources of the company, how much the adjustments would help you, and the requirements of the role you work in.

How to get help

Whilst it is good practice for employers to act if they have good reason to believe an employee is suffering from a disability, mental health issues in particular can be difficult to spot and are sensitive to address with employees.

Some employers are becoming more aware of the value of having ‘mental health first aiders’ in the workplace, however in many instances, your employer and colleagues may have no idea that anything is wrong while you suffer in silence.

Therefore, it’s important to talk to your employer if you have been diagnosed with a mental health problem. This way they can work with you to ensure that you aren’t disadvantaged at work and put in place reasonable adjustments if appropriate. If things don’t go well in terms of the way you are treated, then it is important that your employer has been made aware of your condition as their duty not to discriminate against you will not arise unless they knew, or ought to have known, about your disability.

If you think you are being discriminated against at work because of a mental health issue, you should first make a complaint to your manager or another appropriate representative of your employer. Should they fail to take action, you should register a formal grievance and your workplace should have a process in place for doing this. If you are still not satisfied with the outcome, you may need to seek specialist advice on making an employment tribunal claim.

Can I refuse to come into the office if I don’t feel safe?

Under the current guidelines you should work from home wherever possible.  If this is not possible your employer has a duty to protect the health, safety and welfare of its employees so should put measures in place as per the Health and Safety Executive guidance to ensure safety.

Furthermore, if you have a disability or health condition you should talk to your employer about whether you need any reasonable adjustments in order to ensure your safe return to work. If you feel as though your health and safety is at risk due to returning to the office and your employer is not putting the necessary measures in place to ensure safety then you could potentially refuse to come into the office and have statutory rights to protect you from dismissal, however this would be unpaid and must be reasonable.

Legal advice should be taken if you are considering this course of action as your employer may consider disciplinary action if they believe they have put all health and safety measures in place.

In addition to this, you can raise your concerns in the form of the grievance so the issues can be addressed or alternatively you can report this to your local authority or Health and Safety Executive.

I feel that working from home is affecting my mental health. Can I address these concerns with such concerns?

Your employer has a duty of care for your health and wellbeing and must do all they reasonably can to support you. If you feel as though your mental health is being affected by home working it is encouraged to express this to your employer to see if they can provide support for example through managing working patterns, workload or childcare issues.

Furthermore your employers may provide dedicated help lines or mental health support group or counselling which could provide extra support, your employer should be able to outline these services available to you. If you already have a mental health problem it is particularly important that you express your concerns to your employer as they could provide reasonable adjustments to provide extra support.

What are the legal obligations of employers regarding the negative impact of remote working on employees’ mental health?

Your employers should take measures to prevent employees suffering excessive stress and will be expected to carry out risk assessments in order to mitigate the risk associated with remote home working. As previously mentioned, your employer may have extra support services available and could provide support in the shape of flexible working or, if already suffering from mental health issues, provide even further reasonable adjustments.

In terms of what your employers provide, this will be dependent on the type of work carried out and what could be considered reasonable, however your employer must show that they have taken into consideration the issues and have considered solutions.

Authored by DAS