Mental Health Discrimination
Mental Health Problems a Disability under the Equality Act?
Disability
- What is a disability?
- What if I’m getting medication or treatment for my mental health problem?
- What if I had a disability in the past?
- Checklist: Is my mental health problem a disability?
What is a disability?
You have to show that your mental health problem is a disability to get the protection of the Equality Act.
‘Disability’ has a special legal meaning under the Equality Act, which is broader than the usual way you might understand the word. Even if you don’t think you have a disability, the Equality Act may protect you from discrimination if your mental health problem fits its definition of disability.
The Equality Act says you have a disability if you have a physical or mental impairment that has a substantial, adverse, and long-term effect on your ability to carry out normal day-to-day activities.
The focus is on the effect of your mental health problem, rather than the diagnosis. So you need to show that your mental health problem:
- has more than a small effect on your everyday life
- makes things more difficult for you, and
- has lasted at least 12 months, is likely to last 12 months, or (if your mental health problem has improved) that it is likely to recur.
Examples of ‘substantial adverse effect’
Simon has obsessive-compulsive disorder (OCD). He has to check and recheck whether lights are switched off and doors are locked. This can make him late for work or other appointments. His obsessive thoughts often distract him from activities that he is doing and disrupt his daily routines. His mental health problem therefore has a substantial adverse effect on the way he does things.
Examples of ‘long term’
- Jenny has had depression for 10 months and the doctor says it will be likely to last at least another 4 to 5 months.
- Selina has bipolar affective disorder. She had her first and second episode in January 2013, then a third episode in January 2014. Even though there was a gap between her second and third episode, her mental health problem is considered to have continued over the whole period (in this case, a period of 13 months).
What if I’m getting medication or treatment for my mental health problem?
If you are getting some treatment or taking medication for your condition, you ignore the effect of your treatment when deciding whether your condition is having a substantial, adverse effect on your daily activities. This means the law is looking at how your condition affects you without your treatment or medication.
Example
Mohammed has long-term anxiety and is being treated by counselling. Anxiety would normally make him find simple tasks difficult. Because he has counselling, he is able to get up and go to work.
The Equality Act says you have to ignore his treatment in deciding whether his mental health problem has a substantial adverse effect on his day-to-day activities and so he has a disability.
What if I had a disability in the past?
You are still protected from discrimination if you had a disability in the past. That means that if your past mental health problem had a substantial, long-term and adverse effect, you will get the protection of the Equality Act.
Examples
Four years ago, Mary had depression that lasted 2 years and had a substantial effect on her ability to carry out normal day-to-day activities. She has not experienced depression since then.
If Mary is treated worse by her employer because of her past mental health problem, she will be protected by the Equality Act.
Checklist: Is my mental health problem a disability?
You can ask yourself these questions:
- Do I have a mental or physical health impairment?
- Is it long-term (meaning lasting more than 12 months or likely to do so)?
- Does it have a more than minor adverse effect on my day-to-day living, if I discount my treatment or medication?
If you answered “yes” to all three questions, then your mental health problem could get the protection of the Equality Act.
If you want to get the protection of the Equality Act, you may find it helpful to get some evidence from your GP, or another medical professional. You can ask them to write a letter saying whether they think you have a disability under the Equality Act. It would be particularly useful if they can give their opinion on the answer to each of these three questions.
Example
Esra doesn’t consider herself disabled because she doesn’t receive disability benefits and she is physically healthy.
Esra has been living with an anxiety disorder for the past 3 years. Because of this, it takes her a longer time to do things like get up in the morning, dress herself for the day and do the shopping. She takes medication to control the symptoms.
Esra would be protected by the Equality Act because she has:
- a mental impairment – an anxiety disorder
- it is long term – she has had it for the past 3 years
- it has a substantial effect on her daily life – her mental health has a major effect on her daily life when you ignore the effect of her medication
- it has an adverse effect – her mental health problem makes things more difficult for her.
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There are five potentially fair reasons for dismissal
‘Faced with a challenging discrimination claim, a first for us, Herefords guided throughout, we were able to successfully defend the claim and get some of our costs back too. Recommend highly’ – Managing Director
- This could be a single act of misconduct or a series of less serious acts
- Capability or qualifications. This includes poor performance, ill-health and formal qualifications
- This includes workplace closure, business closure, or reduced need for employees
- Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)
- “Some other substantial reason” (SOSR). This is a catch-all category of potentially fair reasons that do not fall under the other categories. For example, this category may include dismissals for failure to agree to changes to terms and conditions, pressure from third parties such as clients, and business reorganisations falling short of a genuine redundancy situation.
