Last reviewed 29 November 2017

Gudrun Limbrick investigates how disability discrimination law applies to mental health issues.

There is a significant movement at the moment to encourage employers to enable employees to talk to them about mental health issues and to enable employers to be able to respond appropriately and to offer meaningful support to those employees. Organisations such as Acas (the employment advice and mediation service) and Mind (the mental health charity), for example, are both offering significant information and encouragement. However, there is also honesty about what can go wrong in such situations. Not all employers will react positively or appropriately, and there are reported cases of employees being edged out of jobs or promotion prospects because of their mental health issues. In these cases, employees need to know that the law is on their side. The question is, is the law really on their side where mental health issues are concerned?

In the 1970s, the UK saw legislation to protect the rights of women (Sex Discrimination Act 1975) and black and Asian people (Race Relations Act 1976). However, it was not for another 20 years that legislation was brought in specifically to tackle discrimination based on a person’s abilities. The Disability Discrimination Act 1995 was intended to: make it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities and services or the disposal or management of premises; and to make provision about the employment of disabled persons. The Act in practice very much focused on physical access to workplaces, services and businesses such as shops, theatres and so forth, and the provision of toilets which could accommodate someone in a wheelchair.

The Disability Discrimination Act has now been repealed and replaced by the Equality Act 2010 which is an attempt to simplify and streamline anti-discrimination legislation by putting it all under one roof. Essentially, the Act protects people from discrimination in the workplace. Discrimination based on disability, through its inclusion in the Equality Act, has now been put on an equal footing, in terms of its unacceptability, with gender and race. The other interesting feature of the Act in terms of the Equality Act is that it has encouraged a move away from focusing solely on making buildings accessible to those with a physical disability and has specifically included mental impairment on the same level as physical disability. This is of importance given the recent research which has found that 77% of employees have experienced a mental health problem at work.

A characteristic of all legislation is the obsession with definitions of terms. Definitions are, of course, vital to the effectiveness of legislation as they put boundaries around those to whom the legislation applies and end the blurring of what is considered legal and what is illegal. A downside of this inflexibility is that some people find themselves not protected by the law because they fall outside the tight definitions being utilised. The question is, are the terms of the definitions appropriate for conditions such as poor mental health or are too many potential or actual victims of discrimination falling outside the definition?

The Equality Act 2010 defines disability as a physical or mental impairment that has a “substantial” and “long-term” negative effect on an individual’s ability to do normal daily activities. The initial point of interest is the idea that mental health issues can be defined as a disability. It is taking some time for people to get used to the thought that disability is not simply physical or learning disability but can also incorporate mental illness. This is a mind shift which is no doubt logical but will take some time to sink into the general consciousness, particularly as the Disability Discrimination Act which preceded this legislation tended to focus our minds so much on our physical needs in terms of ramps, toilets and appropriate emergency exits.

The second feature, and one of more consequence in a directly legislative context is that, to be considered as a disability for this purpose, the condition must have “substantial” and long-term impacts on normal daily activities. If we look at the long-term issue first, this can be problematic in terms of mental ill health. Some conditions come and go — such as depression which often does not always impact on people in the same way and people can appear relatively well for significant periods of time despite their illness. It is also true that many mental health problems can take a long time to diagnose — either because of the length of time it can take us to realise there is something wrong ourselves and then go and get help, or because such problems can be difficult to pin down even when the medical profession is involved. As a rule of thumb, long-term probably means 12 months in this context but this can be forward-looking, ie an individual does not have to have been ill for the past 12 months but may instead be expected to be ill for the next 12 months. However, this may be equally difficult to evidence in terms of mental ill health which can be very unpredictable.

Next is the issue of what constitutes a substantial impact on daily life. A substantial impact implies that some activity would be very difficult given your condition or that you might not be able to do it at all. This may be difficult to evidence in a condition such as obsessive compulsive disorder in which an individual gets things done but at the expense of extreme emotional trauma and much time. Normal daily activities could be considered to be practical tasks such as walking, cooking, shopping, lifting and carrying, reading, driving and so on but can also include less practical tasks such as concentrating, understanding ideas, relating to other people, prioritising tasks and other elements of life which are important although difficult to measure.

This is the nub of the problem in terms of mental health. Not only are most mental health conditions difficult to diagnose and predict, but their impacts on our lives are impossible to measure. Defining mental ill health as a disability in order to prove discrimination under the terms of the Equality Act is incredibly hard to do but not impossible. Good legal help from people experienced in matters relating to mental health is incredibly important when thinking about a case such as this.

The Equality Act, and cases about discrimination arising from it, have to be a last resort. It is not necessarily easy for people with physical disabilities to gather the evidence they need to prove substantial, long-term impacts to their daily lives, and it is so much harder for people with “invisible” mental health conditions. If there are problems at work, the key has to be to get advice and support as early as possible in the hope that the issues can be nipped in the bud before legislation has to be relied upon. Services such as Acas and Mind are there to be used, not just for the employee but also for the employer who wants to approach issues with appropriate knowledge.