Mental Health Awareness Week takes place from 13-19 May 2019. At Clapham & Collinge LLP we think it's vitally important to raise awareness on disability discrimination in the workplace and highlight the protections the law provides. This article hopes to help raise awareness and reduce the stigma around the discussion of Mental Health.
We are approached by clients on a regular basis who have either experienced mental health discrimination in the workplace, or have had symptoms exacerbated due to unstable working environments or actions of employer/colleagues. Far too often, employees are ignored or issues with mental health go unspoken. It's vital that Employers are approachable and understanding in relation to their staff's mental health so that a safe environment can be created for all.
Issues can arise when employers or colleagues have misguided understandings about mental health and their obligations to support employees struggling with these issues. Training and guidance on these areas can be extremely beneficial for employers to ensure a working environment that is adapted and suitable for all members of staff.
Under the Equality Act 2010, a person is considered disabled if they have a physical or mental impairment which has had a substantial adverse and long-term effect on their day-to-day lives. Generally, any illness which has or is expected to last over 12 months is likely to be considered a disability as long as it satisfies the other aspects of the definition. A person might be considered as disabled by the Equality Act 2010 regardless of whether they consider themselves to be disabled. The Act covers Employees, workers and apprentices.
There are different types of discrimination in relation to disability. These are Direct Discrimination because of disability, direct discrimination because of something arising as a result of the disability, indirect discrimination, failure to make reasonable adjustments, harassment and victimisation.
It is however, lawful to positively discriminate in favour of a disabled person. For example, treating a person with a disability more favourably than non-disabled applicants when being considered for a promotion is perfectly lawful.
- Knowledge
There is an important caveat to this. The Employer cannot be liable for direct discrimination, discrimination arising out of a disability or failure to make reasonable adjustments unless it knew or ought to have known about the disability. For Harassment, it is suggested that an employer cannot be liable unless it knows that a person is disabled as defined by the Equality Act 2010. However, for indirect discrimination there is nothing to suggest that an employer needs to know about the disability to indirectly discriminate.
- Mental Health
This is extremely important in relation to Mental Health. Mental Health is often referred to as the "invisible" disability so an employer may not be aware of these issues at all. For some employees they may not even know themselves that they have a mental health condition.
Mental Health conditions are often misunderstood, mislabelled or undiagnosed especially in milder cases where symptoms could have any number of explanations. In cases of invisible disabilities symptoms can fluctuate and each individual circumstance will be entirely unique. It is important that employers understand their employee's circumstances and conditions to help make adjustments and ensure that an employee is allowed to thrive in the working environment.
This places a high expectation on employers to uncover these hidden disabilities and watch out for signs that an employee may have conditions that they themselves may not be aware of. Further to this, Tribunals when considering the issue of disability, will consider the substantial long-term effect of the disability ignoring the effects of any medications, counselling or treatment which helps to mask the true nature of the illness. Employers should therefore investigate fully and ensure open discussions are encouraged when an issue arises. This will enable employers to have all the facts before making a decision of how best to support the employee.
- Top tips for employers
- Be aware that employees could have hidden disabilities and there may be more than one explanation for a certain behaviour or concern.
- Do not try and push employees to get diagnosed or attempt to label them. Employers only need to understand the impact conditions are having on an employee and help to identify adjustments that can be made to help support that employee.
- Investigate conditions fully to ensure management are informed of conditions. Help and guidance can be given by charitable organisations to assist with this. Making sensitive enquiries can ensure higher awareness and in turn promote understanding and knowledge.
- Do not focus on the negative. Employers should be looking at what employees do well and considering whether a job role could be tailored to an employee.
- Keep in mind that formal processes such as performance management or disciplinary procedures can exacerbate issues and that perceived misconduct could be a result of a hidden disability.
For further help and advice from our dedicated team of employment law solicitors, call 01603 693500 or email us using 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
