Have you ever, made a decision at work and perhaps forgot to consider how it might disadvantage someone with a mental health condition? How often have you had to follow disciplinary procedures when an employee’s attendance has been questioned rather than first seek to offer support?

Sometimes people with mental health issues are treated poorly at work because of their mental health condition. This is referred to as discrimination and can potentially lead to employers being prosecuted.

Understanding employee rights

Everyone is protected under the Equality Act (2010). The Act prevents discrimination and removes barriers averting equal access to work and opportunities. Several mental health conditions are classified as a disability under 1 of the 9 protected characteristics in this Act. 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.

Example – John has bi-polar. He asks his line manager if he can apply for a promotion. The additional responsibilities are well within Johns capabilities. Johns line manager says he can’t apply because he has bi-polar.

Indirect discrimination

Occurs when a set of rules or circumstances change for everyone but indirectly effect a person with a mental health condition.

Example – Zoe has depression which is currently well managed through self-care and medication. Zoe’s meds can make her feel quite drowsy, especially at night. Zoe’s company has just altered everyone’s shifts pattern and she is now told to work much later in to the evening. Zoe’s company have said she has no choice but to adopt the new shift pattern.

It is worth noting if in this example Zoe’s employer can demonstrate the change is for good reason, appropriate and necessary it won’t be discrimination. In this case, a simple reasonable adjustment could be made to allow Zoe to remain on her existing shift pattern.

Harassment

Blatantly being mistreated because of a mental health condition. Quite often manifests itself as bullying in the workplace.

Example- Anita has obsessive compulsive disorder. Anita’s supervisor knows about this and makes fun of her, because of her condition, during an open team meeting.

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 hadn’t made the complaint.

Example – Raúl has general anxiety disorder. Raúl supports a colleague to raise a grievance to their employer about disability discrimination. Subsequently, Raúl’s supervisor withdraws the opportunity for a promotion on the grounds of Raul’s lack of company loyalty.

Discrimination arising from disability

May occur through punitive measures taken due to an increased amount of absence because of a protected characteristic.

Example- Janine has schizoaffective disorder. Her employer knows about her condition. She has worked for the company for the past 3 years but has recently had several periods of extended absence because of her condition. Janine’s employer disciplines her for poor attendance. Janine has not been treated fairly with respect to her condition but rather as a consequence of her condition.

It is worth noting the way Janine was treated will not be discrimination arising from disability if her employer proves the treatment was for a good reason, and appropriate and necessary, or they did not know or could not reasonably have known that Janine had a disability.

Can you ask candidates about their mental health at an interview?

In most circumstances’ employers can’t ask potential employees 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 you about it. 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 it is likely mental health disclosure will be much higher among the wider workforce.

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. It is 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.

Want to provide better mental health support to your entire workforce?

Pascal® is an innovative online mental health support platform that allows you and your employees to measure home and work pressure, ensures you comply with HSE regulations and employment law, and importantly, provide your employees with more support surrounding mental health.

Taking less than 10 minutes to complete, employees will receive a confidential report with recommendations and links to existing support pathways. Your company report then identifies hotspots and trends to focus your mental health strategy around.  Learn more about Pascal here.