Mental Ill Health in Court: Disability Discrimination
- Date: Wednesday 15th November 2017
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A number of cases in the press have recently highlighted the cost to employees and businesses, in situations of disability discrimination at work, when mental health is the disability.
So, as managers and business owners, what more should we be doing to protect ourselves, our businesses and our employees, when long term mental ill health becomes a problem at work? Lauren Applebey examines recent case law and asks when does mental ill health become a disability.
What does the law say?
The Equality Act 2010 makes it unlawful to discriminate against employees because of a mental or physical disability.
Under the Act, a person is disabled if they have a physical or mental impairment, which has a substantially adverse and long-term effect on their ability to carry out normal workplace activities, such as like using a telephone or computer, interacting with colleagues, following instructions, driving and carrying everyday objects.
As a company there are two things that are hugely beneficial when it comes to looking after your staff’s mental wellbeing: reasonable adjustments and return to work interviews.
Reasonable adjustments are best made proactively, but are often put in place after a period of sickness absence. Reasonable adjustments can include a change in shift patterns, flexible working hours and time off-work to seek professional support.
Adjustments are often very straightforward and easy and low cost to implement (hence the word reasonable) yet failure to make ‘reasonable adjustments’ for a disabled job applicant or employee is one of the most common types of disability discrimination.
So how do we know when mental health becomes a disability?
Disability and in particular that which relates to mental health is notoriously complex. The relationship between disability and capacity to carry out workplace duties, and associated health and safety implications, has led to some complicated cases. To be answerable for alleged disability discrimination an employer has to know, or be in a position where they should have known, that the employee is disabled.
Laura Hutchison, Senior Enforcement Officer, Equality and Human Rights Commission, in her article states that one of the unique aspects of disability, compared to the other characteristics protected by the Equality Act 2010, is that there is often disagreement between the employer and employee about whether the employee is in fact disabled, and whether the employer was aware, or should have been aware, that the employee was disabled.
Communication is king
To know that an employee’s mental health condition is a disability, and to understand which reasonable adjustments would be suitable and sufficient, employers must communicate regularly with staff, and aim to create a healthy culture around the topic of mental health.
Providing training, and initiatives, to encourage staff to seek help and support where needed, is one of the best ways as an employer to demonstrate to your employees how valuable their mental health is to the company.
Ensuring anyone that speaks to a manager about a mental health issue is dealt with professionally, and their situation is handled with confidentiality is key. Research shows carrying out a return to work interview is one of the most effective ways to manage attendance and reduce absence.
Considering reasonable adjustments – not just after a problem has been identified, but before a situation has escalated – is the best way to help employees, your business and yourself, to meet moral obligations as an employer.