Mental Health Discrimination

As an employer, it’s crucial to eliminate all forms of mental health discrimination.

When an employee suffers from a mental health illness, it affects the company as a whole. If they aren’t cared for, you could end up facing discrimination claims–affecting your productivity, income, and brand-name.

In this guide, we’ll look at what mental health discrimination is, different forms of discrimination, and how to eliminate them.

What is mental health discrimination?

Mental health discrimination is when an employee is treated unfavourably because of a psychological illness. The condition must meet the legal requirements of a disability in order for it to class as unlawful discrimination.

Mental health at work issues can range from severe depression to bipolar disorder. As an employer, you must treat a mental illness in the same way as a physical one. By ensuring good mental health and treatment, you’re on the way to building a healthier and happier workforce.

Why is it important to identify mental health discrimination?

All employers have a legal responsibility to support anyone with a mental illness. You can make positive changes by managing issues through the right procedure. For example:

• Creating a safe and healthy working environment.
• Reducing bullying, harassment, and discrimination.
• Performing risk assessments to minimise triggers.
• Providing reasonable adjustments for relevant individuals.

Employment law on mental health discrimination

Under employment law, there isn’t specific legislation outlining mental health discrimination. However, there are certain laws that are applicable.

The Equality Act 2010 states employers have a legal responsibility to reduce discrimination relating to a mental illness. All employees are protected against unfair treatment or ill-behaviour directed at their health.

Mental health disability

Legally, a mental health problem may be categorised as a disability if the right conditions are met. Disability is a protected characteristic which you cannot discriminate against.

The protected characteristics outlined under the Equality Act include:

• Age.
• Disability.
• Gender reassignment.
• Marriage and civil partnership.
• Pregnancy and maternity.
• Race.
• Religion.
• Sex.
• Sexual orientation.

In some cases, a person’s mental health disability can dictate their whole day–from waking up, to going to bed.

For a mental illness to be diagnosed as a disability, it must:

1. Have a 'substantial adverse effect’ on their daily life.
2. Last at least 12 months.
3. Influence their ability to do normal activities.

Reasonable adjustments

Employers have a legal obligation to provide reasonable adjustments to anyone with mental health disabilities.

These are practical changes which enable a disabled person to work to the best of their ability. A common reasonable adjustment for a disabled person includes changing their everyday tasks, environment, and cultures.

If these are neglected, the employee could raise a disability discrimination claim. These often result in facing court attendance, compensation penalties, and reputational damages.

Duty of care

Not all people with mental health problems require additional support. Some may only need small adjustments. But, whether they need them or not, you have a legal duty of care.

Some employees might fear being labelled or stereotyped if they mention their mental illness. They might fear repercussions to career development opportunities, like training or promotions.

Different types of unlawful discrimination

There are several ways an employee can face unlawful discrimination. These include:

• Direct discrimination: This revolves around overt prejudicial and unfavourable treatment.
• Indirect discrimination: This involves a practice or tradition which specifically disqualifies a certain group.
• Discrimination arising from disability: This is when someone faces a substantial disadvantage because of something relating to their disability (rather than the condition itself).
• Failing to provide reasonable adjustments: This is when an employer or their business fails to introduce work changes, particularly for employees who are legally entitled to them.
• Harassment: This is when a person feels intimidated due to hostile behaviours or environments.
• Victimisation: This is when a person receives unwanted treatment or attention after raising a complaint at work.

How to eliminate mental health discrimination

All employers have a duty to create an environment which comforts employees and their specific needs. By doing so, you can ensure equality and inclusion at the highest level-leading to business turnover, loyalty, and success.

Read our article: Equality in the Workplace: Employer Responsibilities

Ways to eliminate mental health discrimination

Raise awareness on mental health issues

It’s so important to raise awareness for health conditions–including both physical and mental illness.

People can suffer from a variety of mental illnesses, each with individual symptoms and triggers. That’s why it’s important to raise awareness on them.

The best way to identify what causes discrimination against a mental health problem is through talking. Have open discussions and meetings; and note what practices are heightening triggers.

Make reasonable adjustments

There are so many reasonable adjustments that can help employees with a mental health condition. But instead of implementing as many as possible, tailor them to individual needs.

Make reasonable adjustments like providing mental health care, flexible working hours, and separate workspaces. By doing so, you enable employees to perform to the best of their ability-keeping up with their peers.

Promote equal opportunities

The best way to grow cohesion is through promoting equal opportunities.

Champion equality through organisational policies, cultures, and practices. And hold zero-tolerance for discrimination, harassment, and victimisation

Update grievance policies

It might seem like a minor thing, but updating your grievance policies is the best way to eliminate mental health discrimination.

Make sure all employees are aware of your grievance procedure. And highlight what appropriate steps will be taken to resolve matters.

Remember, if an employee is treated worse compared to their peers, they could raise a grievance claim to an employment tribunal. Here, if you’re found guilty, you could end up paying expensive penalties and business damages.

Can mental health discrimination ever be justified?

There are some situations where discrimination against mental health conditions can be justified.

Here, the employer must show a 'proportionate means of achieving a legitimate aim’. In employment law, the discriminatory action could be seen as lawful and therefore defensible. For example, discriminatory actions might relate to health & safety purposes or business profitability.

A judicial court will decide if these actions were essential and appropriate. They could look favourable towards the employer if they believe they weren't aware of the person’s mental health problems.

Can you dismiss an employee because of their mental illness?

In some situations, you are allowed to dismiss an employee because of a mental illness. But only through appropriate procedures.

If an employee cannot fulfil the terms of their employment contract, you may legally be able to dismiss them. For example, the reasonable adjustments you provided have made no difference to their capability. And, as a result, you are facing business losses.

However, dismissal in this way should be the last resort. Before anything, follow a fair dismissal procedure and ensure the employee is aware of all information and rights.

Get expert guidance on mental health discrimination with HA | Wisdom Wellbeing

It’s vital all employers support and protect any employee with a mental illness. And take steps to eliminating any form of discrimination against a mental impairment.

If you fail to protect these vulnerable employees, you could end up losing them–along with their respect, loyalty, and service. And some may even choose to raise disability discrimination claims against you.

HA | Wisdom Wellbeing's EAP offers expert guidance on mental health discrimination. Our teams provide mental health treatment and counselling services. Together, you can protect employee wellbeing whilst simultaneously meeting your company needs.

We also provide a 24/7 helpline that’s open 365 days a year–helping employers and their businesses all year round. Arrange a call back from an expert today on 0800 206 2532.