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Avoiding discrimination against employees with mental health problems

February 23, 2016

Mental health problems are often misunderstood, but as an employer it’s your responsibility to ensure that your employees are treated fairly.

Some people may recover from a mental health condition such as anxiety or depression, or it may only have a minor effect, but if an employee’s mental health issues are severe enough to count as a disability, you will also have to consider your legal responsibilities towards them.

This guide outlines your duties and responsibilities to any staff with mental health problems, and helps to ensure that you don’t inadvertently discriminate against them.

When is a mental health problem a disability?

A mental health problem is considered a disability if it has a ‘substantial’ and ‘long-term’ effect on the sufferer’s normal daily activities. ‘Substantial’ means an effect which is not merely trivial, while ‘long-term’ means it has lasted, or will probably last, for 12 months or more.

It’s important to note that this definition is based on the severity of symptoms if left untreated. This means that if the employee is able to cope because of medication or therapy, but wouldn’t be able to do so otherwise, it might still be classed as a disability.

For more on disability, it’s worth reading our guide on; Disability in the workplace – what small businesses can do to manage it.

If an employee’s mental health condition counts as a disability, they have certain rights under the Equality Act 2010. They have the right to not be discriminated against due to their disability, and they may also be entitled to what are known as ‘reasonable adjustments’.

Reasonable adjustments for mental health issues

Reasonable adjustments are changes to the work environment which can help to put an employee with a disability on a level playing field with their colleagues. Exactly what this might involve will depend on the problems their condition causes them – those which would help an employee with a mental health problem are likely to be quite different from those for someone with a physical disability.

You should discuss any possible adjustments with the employee to establish what might be suitable – this might include, for example, specialist equipment, changes to working practices, or additional assistance or mentoring.

As well as accounting for the symptoms of their condition, you may be expected to accommodate the treatment they are receiving. For example, they might need to rearrange their working hours to attend a weekly therapy session, or might not be able to work late shifts due to their medication causing drowsiness.

You aren’t obliged to make an adjustment if you don’t think it would be ‘reasonable’ to do so. Defining this can be tricky, but when thinking about whether an adjustment would be reasonable, consider:

  • How much it would help the employee
  • How practical it would be to implement
  • The cost of the adjustment
  • The impact it would have on the business

The size of your business is an acceptable consideration

It’s fine to take the size of your business into account when considering if an adjustment would be reasonable – for example, a small business with fewer staff may have less capacity to make changes to its working practices than a larger one, or may not be able to afford specialist equipment.

If you are wary about the proposed adjustments affecting the way their work is done, you should carefully consider what the core requirements of the role are, and what can be changed. Just because “everyone else is fine” working in an open-plan office doesn’t mean that it’s reasonable to turn down a request for a more private space made by an employee suffering from anxiety.

On the other hand, if the nature of their role requires them to be out on the warehouse floor, this wouldn’t be a practical request. However, simply saying that things have always been done a certain way without any further consideration is unlikely to be reasonable.

If your employee has been on sick leave due to a mental health problem, reasonable adjustments might also include helping them back into their role when they return, for example by allowing them to work part-time at first to ease themselves back into the role. Our guide on Anxiety and depression – how to manage them in the workplace tells you more about how you can do this.

Avoiding mental health discrimination

If an employee’s mental health problem counts as a disability, you also need to ensure that they are not discriminated against at work. This means they should not be treated worse due to their condition or anything resulting from it.

There are several different types of discrimination:

Direct discrimination

Someone being directly treated worse as a result of their disability. An example would be if you refused to promote an employee because they suffered from depression.

Indirect discrimination

When something expected of all employees has more of an impact on a disabled employee. For example, if you expect everyone in the department to give a presentation, this could have a disproportionate negative effect on someone suffering from severe social anxiety.

Harassment

Bullying (unwanted conduct which intimidates or upsets the employee) based on their disability.

Victimisation

Treating an employee worse for making a complaint about discrimination taking place in the workplace.

As the employer, you could be held responsible for discriminatory behaviour by other employees unless you can demonstrate that you did everything you could to stop it.

It’s in your interests to ensure that employees with mental health problems are treated fairly in your workplace. If you have any concerns regarding your treatment of an employee suffering from a condition which may count as a disability, it would be advisable to seek legal advice.

About the author

This guide has been written for ByteStart by James Watkins who is part of the team at Law on the Web.

More help on dealing with employment law and managing staff

For more tips and guidance on staff related issues, try some of our other guides;

And for advice on how to hire, motivate and keep great staff, read these guides;