Kate Brooks

Partner, Solicitor & Head of Employment/HR Services

DATE PUBLISHED: 03 Oct 2018 LAST UPDATED: 18 May 2022

Mental Health and Discrimination

As an employment lawyer, I often get asked by employer and employee clients whether mental ill health can constitute as a disability.

In order to be considered disabled under the Equality Act 2010 and qualify for protection against discrimination an individual must show the following:

They suffer from a physical or mental impairment;

1. Which has a long term effect (this has or is likely to have lasted for 12 months);

2. Which has a substantial impact on their ability to carry out normal day to day activities. These are not specialist to the individual or their job, just normal activities like household chores and getting up in the morning.

In order to constitute a disability the impairment does not have to necessarily come with a medical diagnosis, but just has to meet the tests above.

It is a common myth that an employee actively has to tell their employer that they have a disability in order to be covered by the legislation. This is not the case; the test of knowledge of a disability is whether a reasonable employer ought to have been aware. If an individual is showing signs of being stressed at work e.g. low mood, out of character behaviour, time off sick, then a reasonable employer would be expected to pick up on this and appreciate that the employee may be suffering with a disability.

If an employee’s impairment meets the definition of a disability, the employee has additional protection right from the start of their employment to include:

1. Not being subject to acts of discrimination directly because of their disability or something arising from it i.e. time off, or inability to do their job.

2. Not being made to feel humiliated, degraded or offended as a result of their illness; and/or

3. Not being treated badly as a result of raising complaints about discrimination;

4. An obligation on the employer to consider reasonable adjustments to facilitate the employee’s job.

If you have questions about how to assist employees in the workplace, or believe you may have been subjected to discrimination, please call our experts on 01202 525333 or email us here.

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