BPE discuss Navigating Disability Discrimination and Mental Health

How the law defines disability

As with physical health conditions, mental health conditions must be considered on a case-by-case basis when establishing if a person is disabled for the purposes of the Equality Act.

A person is considered disabled under the Equality Act if they have a physical or mental impairment that has a ‘substantial’ and ‘long term’ negative effect on their ability to carry out normal day-to-day activities. More specifically, the health problem must:

Have more than a trivial effect on everyday life; and
Have lasted at least 12 months or be likely to last 12 months or longer.
For example, anxiety would only be considered a disability in more severe cases where it impacts a person’s ability to carry out everyday activities and is not just a one-off, short-term episode.

Of course, even where an employee suffering from a mental health condition may not be considered disabled under the Equality Act, you should be supporting them at work.

Types of disability discrimination

If an employee is disabled under the Equality Act because of a mental health condition, they are considered to have a protected characteristic and have legal protection from discrimination.

It is important to remember that disability discrimination takes a variety of forms and is often discrete and subtle, which is where employers are likely to trip up.

Direct discrimination

This is where an employee is treated less favourably than another employee in a similar situation because of disability. For example, person A and person B both apply for the same job. Person A is offered the job for the simple reason that Person B is disabled, and the business does not want to employ a disabled person. Direct discrimination is rare as, generally, employers do not overtly discriminate in this way, and there is usually a different reason for any less favourable treatment which takes place. It is, therefore, difficult for claimants to succeed in this type of claim.

Indirect discrimination

This is where a working practice, policy or rule applies to everyone but puts a disabled person at a disadvantage (and would put others sharing that disability at a disadvantage). For example, a company has a policy in place where capability proceedings are automatically triggered once an employee has reached a certain number of absences. A disabled person who has increased absence levels because of their disability will be disadvantaged by this policy, as will others sharing that disability. However, remember that indirect discrimination may be justified if the employer has a legitimate aim and the discrimination is a proportionate way of achieving that aim (i.e. there is no less discriminatory way to achieve the aim).

Harassment

Disability-related harassment is when someone engages in unwanted behaviour related to disability and that conduct is intended to or has the effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

For example, an employee with depression is told to pull themselves together and cheer up.

It is important to remember that someone can experience disability-related harassment even if they themselves are not disabled. In the above example, a different colleague (who does not have MS) could also be offended by those jokes.

Victimisation

This is when someone is subjected to detrimental treatment because they have done a “protected act” such as raising or being involved in a discrimination complaint or claim.

Discrimination arising from a disability

This is a common form of disability discrimination and often difficult to defend. It occurs where a person is treated unfavourably because of something that results from a disability and not because of the disability itself.

For example, if an employee has depression (that amounts to a disability) and underperforms as a result of this, subjecting them to capability/disciplinary proceedings and providing them with a final written warning would be unfavourable treatment arising from their disability.

An employer can defend this type of claim if they have a legitimate aim and the unfavourable treatment is a proportionate means of achieving that aim (as per indirect discrimination).

It is relatively easy to demonstrate a legitimate aim (e.g. the need to manage and ensure adequate performance of staff), but employers often struggle to show the treatment was a proportionate way of achieving this.

Duty to make reasonable adjustments

Under the Equality Act, employers have a duty to make reasonable adjustments to accommodate disabled employees. A failure to fulfil this duty is an act of disability discrimination.

In simple terms, the duty is triggered if an employee is placed at a substantial disadvantage by a provision, criterion or practice (“PCP”) that is imposed by the employer. In that case, the employer must make reasonable adjustments to avoid that disadvantage.

Reasonable adjustments can take a variety of forms, including auxiliary aids such as specialist equipment or furniture, but could also take the form of a policy, such as a flexible or hybrid working policy, making allowances for employees who may be suffering from a mental health condition and cannot cope with attending the office full time.

It is good practice to ask a disabled employee about any adjustments that would assist them and to assess whether it is something that the business would be able to accommodate. However, not all adjustments will be reasonable, and this will depend on a variety of factors including the size and resources available to the business.

Knowledge?

When a new employee joins a business, they should be provided with a medical questionnaire where they are given the opportunity to inform the employer of any medical conditions they have and what adjustments, if any, they may need.

But what are an employer’s obligations when the employee does not disclose that they are suffering from a particular medical condition or disability?

Unfortunately for employers, there will also be a duty to make reasonable adjustments if the employer has “constructive knowledge” of the disability, i.e. if they could reasonably have been expected to know that the employee was disabled, for example, if the employee has had absences from work for mental health-related issues, has disclosed low mood to their line manager or is evidently struggling with their mental health.

We have seen a huge increase in tribunal claims and grievances that are mental health related. Employers need to ensure that they are creating a culture of openness and support around mental health in their workplaces and doing everything that is reasonable to facilitate and support those employees who may be struggling at work. It is imperative that employees feel supported in addressing their mental health needs without stigma.