Mental Health and the Equality Act 2010
By Ethan Diver, Solicitor at Taylor Walton Solicitors (www.taylorwalton.co.uk)
According to the Health and Safety Executive, there were an estimated 875,000 workers suffering from work-related stress, depression or anxiety in 2022/2023. This equated to around 17.1 million working days being lost for this reason.
Although depression and anxiety are considered the most common, employers may encounter a range of mental health conditions, such as PTSD, eating disorders and personality disorders.
Mental health and the law
There is no employment legislation which addresses mental health specifically. However, some employees may be classed as “disabled” under the Equality Act 2010. This applies where an employee has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The focus of this statutory definition is on the impact that the condition has on the individual. As such, not all employees with mental health conditions will be classed as disabled, particularly as some conditions can range from mild to severe. Nevertheless, many employees with mental health conditions will satisfy this definition, especially where their condition has a clearly prohibitive effect on their personal and/or working life. This may be the case even though they do not consider themselves to be disabled in the ordinary sense of the word.
Where an employer suspects that an employee’s mental health may amount to a disability, they must comply with the usual duties that they owe towards disabled employees. This includes the duty to make reasonable adjustments, which requires them to take reasonable steps to help employees overcome the disadvantages caused by their mental health condition. For example, the ACAS guidance suggests that a potential reasonable adjustment would be to allow someone to work from home to manage distractions or engage in activities which allow them to manage their mental health.
In addition, employers could also face other disability discrimination claims if they were to treat an employee with a mental health condition less favourably because of that condition (direct discrimination) or something arising from it (discrimination arising from disability). For example, an employer may be liable for discrimination arising from disability where it treats an employee less favourably because they spend more time on sick leave due to mental health issues than other employees without their condition.
Supporting employees with mental health conditions
Irrespective of whether an employee’s mental health condition amounts to a disability, encouraging conversations about mental health and supporting affected employees can often have positive impacts for businesses. Most importantly, it can help to improve staff wellbeing which in turn can reduce sickness absence and staff turnover and improve productivity. It will also help to minimise the risk of claims under the Equality Act 2010.
Therefore, all employers should take a proactive approach to dealing with mental health issues. Where an employee has disclosed a mental health condition, employers should consider what impact it is having on the employee and any possible adjustments. In doing so, employers should meet with the employee – ideally on an ongoing basis – to discuss their condition and, if in doubt, should consider making a referral to occupational health for expert advice.
However, not all employees struggling with their mental health are likely to speak up. Therefore, employers should remain alert to common warning signs, such as increased tiredness, behavioural changes and increased sickness absence/lateness. These warning signs can be more difficult to spot in homeworkers and so employers with working from home arrangements should ensure that they retain a regular and open dialogue with these employees.
Practical tips for employers
The ACAS guidance includes a number of tips for employers to encourage employees to talk about mental health. For example, it recommends that employers approach discussions about mental health in a positive and supportive way and they listen to and reassure employees who raise concerns. It also recommends using precise language, such as avoiding referring to employees with mental health conditions as “suffering from” their condition.
It is also increasingly common for employers to elect “mental health champions”. These are employees who support colleagues with mental health concerns, encourage positive mental health and challenge stigma across their organisation. Mental health champions are typically elected from volunteers across the workforce who are then provided with specific training about their mental health champion role.
In order to ensure that all employees act inclusively, employers should also consider providing general mental health training (particularly to managers) and running awareness campaigns across their business. They might also consider implementing a mental health policy setting out how employees should raise concerns and the steps that managers should take in response.
This open and inclusive approach will help to ensure that employers meet their duty of care to do all that they reasonably can to support employees’ health, safety and wellbeing, which applies to mental health in the same way as physical health.
