Mental health and discrimination in the work place

This week Samira Ali of SCE Solicitors discusses mental health discrimination in response to a new series on Channel 4, World’s Maddest Job Interview, as part of its 4 Goes Mad Season. Here’s what she had to say…

I was inspired to write this blog about the new series which was on channel 4 on July, 25, 2012 and from a blog by Jenny Cooper which looks at ways to manage and deal with stress.

According to MIND, the mental health charity, one in five people that disclose a history of mental illness are either fired or forced out. Further many others believe disclosing a mental illness will harm their prospects of securing employment.

Channel 4 investigated this theory by inviting a panel of ‘employers’, consisting of Claude Littner (Viglin), Elaine Holt (National Express) and Austin Gayner (a small business owner). They assessed 8 candidates, the majority of whom has severely suffered from some form of mental health issues.

The employers while being sympathetic admitted they would not employ someone who had been sectioned. The underlying message for the viewers and particularly employers was whether this pre-conception was justified. The answer was that it was not as all three of the chosen candidates, who had proven themselves through a vigorous interviewing process, had a history of suffering severe bouts of mental health problems.

The intention of this blog, which has been written with both employers and employees in mind, is to give you an overview of the law and guidance as to how to manage employer-employee relationships.

The legal protection

When exploring the protection the law affords to disabled people, I think it would be safe to assume that the majority of employers would consider the discrimination legislation – the Equality Act 2010 (EqA) when mental health issues are brought to their attention.

Providing the employee’s mental health condition satisfies the definition of a disabled person being someone who has a ‘mental impairment and the impairment has a substantial and long-term adverse effect’ on their ‘ability to carry out normal day to day activity’ (section 6 (1) EqA) then the law protects the employee from discrimination (the complete definition also includes ‘physical impairments’ however that is a topic for another blog). This protection extends to those with a history of having mental health problems.

Without going into too much legal jargon, the law protects disabled employees from:

  1. Being treated less favourably on the grounds of their disability (section 13(1) and (3) EqA).
  2. Being treated unfavourably because of a disability and that treatment is not a proportionate means of achieving a legitimate aim (section 15 EqA).
  3.  Being treated in a discriminatory manner as a consequence of a Provision, Criterion or Practice (PCP) in place (section 19 EqA).
  4. Being harassed, this is defined as being unwanted conduct, which has the purpose or effect of violating the disabled employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (section 26(1) EqA).

Further an employer has a legal duty to make reasonable adjustments, where a PCP puts a disabled employee at a substantial disadvantage in relation to a relevant matter in comparison to employees who are not disabled. The reasonable adjustment should be made to alleviate the disadvantage (section 20 EqA).

This is sometimes more difficult to achieve where the disability relates to an employee’s mental health, employers should (and do) obtain either an occupational health report (if they are a larger employer) or if they are a smaller employer take all reasonable steps to obtain a GP report.

If, the employee only brings their mental health issues to their attention when they are very near a breakdown then it is usually impossible to manage the situation. So if you are an employee who is feeling mentally challenged, you should speak to your employer at an early stage to ensure that matters can be dealt with promptly.

Long term sickness

Employee’s usually feel forced out from their position as a result of being on long term sickness absence, they become disheartened when capability procedures are commenced, however employers need a method to manage and control long term absences in accordance with their business needs.

Employers should be compassionate and understanding during this process and employees should make every attempt to be as honest as they can – this can help maintain a relationship.

Most employers will make all attempts to allow their employee to return to work.

Return to work

Employees can also feel forced out of their position where they feel they are not being supported by management when they are finally in a position to be able to return to work. Again this should be managed by making any agreed reasonable adjustments and by following a phased return to work.

Again employers are making attempts to get the employee back into the position prior to their sickness absence, it is in the business interest to help and assist the employee. Unfortunately some pressurised environments may not be the best place for those recovering from severe mental health problems. Again providing both parties communicate with one another a resolution can be reached.

Recruitment

In my opinion employers who use a range of interviewing methods, like those used in the documentary, for example we saw the candidates being tested for creativity, memory, initiative, leadership and social skills, are likely to employ the strongest candidate irrespective of any mental health issues.

Conclusion

Mental health issues and discrimination is and will always remain to be a topical area (not least because of media coverage) as employers make attempts to balance the needs of employees and their business.

In my opinion it becomes more difficult for smaller employers to manage the needs of employees with mental health problems, simply due to their size and administrative capabilities, however I have not seen this deter SME’s employing someone who has suffered from mental health problems.

On a personal note, if the most capable candidate was someone who had suffered from mental health problems, I would not hesitate in employing them on their merit.

Has this article given you food for thought? If you require any further information in respect to any matters discussed here why not contact Samira on samira.ali@scesolicitors.co.uk or post a comment, she would love to hear from you.

Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with me or other professional counsel before acting on the information contained here.