Almost half of people with mental health problems do not know that their conditions could legally be classed as a disability.

The mental health charity Mind carried out an online survey of more than 1700 people with mental health problems and found that 44% of respondents fell into this category and are consequently missing out on important workplace rights and protections to which they are entitled.

Vicki Nash, Head of Policy and Campaigns at Mind, said: “There is a huge gap in awareness among those of us with mental health problems that we could be covered by the Equality Act 2010. Ahead of the general election, we’re calling on the incoming Government to make sure they address this issue.”

She has called for the next Government to commit to clarifying the definition of a disability under the 2010 Act to make sure staff with mental health problems have better access to rights and protections in work.

Mind has highlighted that, while the Equality Act gives disabled employees the right to not be discriminated against in work, and a right to reasonable adjustments if they need them, poor understanding of this leaves employees unable to challenge their workplace if and when they face discrimination on the grounds of a health condition.

Lack of definition under the Act?

At the moment, a mental health problem qualifies as a disability under the Act if it has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities and if it has lasted, or is expected to last for 12 months or more, or to recur.

Mind has argued that many people are not sure what “substantial adverse effect” means, while others believe that because their mental health fluctuates from good to poor they would not meet the criteria.

When shown the above definitions, one in three people in Mind’s survey either felt that their mental health problem did not fit the definition or were not sure if it did.

In reality, the charity insists, many of these people with such problems would be covered by the Act if they were able to ask for help.

Comment by David Price, CEO and workplace wellbeing expert at UK’s leading health and wellbeing provider, Health Assured

An employee with a mental illness can indeed be classed as having a disability, which is a protected characteristic under the Equality Act 2010.

This means that all employees have the right not to be treated less favourably due to this fact, have reasonable adjustments made to their work to remove the barrier that the disability causes, and not to be subject to discrimination arising from a disability.

If an employer were to take action against an employee for reaching pre-set absence levels or deny an employee an attendance bonus based on the number of absences which included those related to mental health, there is a risk of a discrimination claim.

Because of this, employers should think carefully when treating mental health days in the same way as all other sickness absence.

Last reviewed 10 December 2019