Mental Health Discrimination at Work

Our working conditions and environment can have a huge impact on our mental health, and, equally, our mental health can significantly affect our performance levels and our effectiveness in our job.

Although the stigma of mental illness affects many aspects of a person’s life, it often has the greatest impact on their working life. Stigmatisation is the rejection by others of an individual with an attribute viewed by those others as negative and undesirable. Exclusion and discrimination commonly follow.

Discrimination against those with mental health issues remains a problem in workplaces, even though a significant proportion of the workforce will face poor mental health during their working life, and it can be experienced across all aspects of the employment life-cycle. People with mental health problems can find it more difficult to obtain work in the first place and should they secure employment, they often continue to experience issues during their working life.

Others who develop a mental health issue whilst in employment can also experience stigmatisation and discrimination because of their condition.

Research by the Citizen’s Advice Bureau (CAB) found that one in three people with a long-term mental health condition experienced difficulties with their employment as a result of their condition, from making it into work, deteriorating relationships with colleagues and needing reduced hours. In a period of one year, they saw 6,540 employment clients with mental health problems with 12,130 employment issues.

The CAB state that, on average, clients with mental health problems have 5.3 advice queries compared to other clients who have 3.8 queries in a given year, and that people with mental health problems are more likely to experience discrimination at work. 48% of clients that they had helped who have mental health problems had experienced employer discrimination, and that clients with mental health issues are 60% more likely to ask for advice on enforcing their employment rights than those without mental health problems.

Fifteen per cent of working-age adults were estimated to have a mental disorder in 2019. Poor mental health costs UK employers somewhere between £33 billion and £42 billion each year. Stress, depression or anxiety accounted for 44% of all work-related ill health cases and 54% of all working days lost due to ill health in 2018/19.

What is mental health discrimination at work?

Mental health is “a state of well-being in which the individual realises his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community” (World Health Organization – WHO).

There is no legal definition of mental health, but it is generally understood to be the emotional state in which you are able to cope with the normal pressures of everyday life. This will include your mental health condition and mental illness.

Where mental health amounts to a disability, it will be unlawful discrimination if an employer treats someone less favourably because of their disability, or something arising as a consequence of their disability; this is known as disability discrimination.

People with mental health disabilities often experience impairment and barriers in different ways in the workplace. Disabilities are often “invisible” and episodic, with people experiencing periods of wellness and periods of disability. However, all people with disabilities have the same rights to equal opportunities under the law, whether their disabilities are visible or not. People with mental health issues have the same right to be free from discrimination as other people with disabilities.

Mental health discrimination in employment may happen when a person experiences negative or less favourable treatment or impact because of their mental health. Discrimination against people with mental health disabilities is often linked to prejudicial attitudes, negative stereotyping, and the overall stigma surrounding these disabilities.

People with a mental health disability who also identify with other protected characteristics such as age or sexual orientation may be distinctly disadvantaged in the workplace, as particular stereotypes may exist that are based on combinations of these identities that place people at a unique disadvantage.

Are there any laws around mental health discrimination at work?

People living with mental health conditions have a right to participate in work fully and fairly. The UN Convention on the Rights of Persons with Disabilities provides an international agreement for promoting the rights of people with disabilities, including mental health disabilities, including at work. The agreement sets out what countries have to do to make sure that disabled people have the same rights as everybody else.

In Great Britain (the Act does not apply in Northern Ireland*) these rights are set out under the Equality Act 2010, where employers cannot discriminate against any employee or job candidate who has one or more of the nine characteristics protected under the Act.

These characteristics are:

• Age.
• Disability.
• Gender reassignment.
• Marriage or civil partnership.
• Pregnancy and maternity.
• Race – this includes colour, nationality, ethnic and national origin.
• Religion or beliefs.
• Sex.
• Sexual orientation.

This means that employers cannot legally discriminate against anyone with a mental health illness that classifies as a disability. A mental health condition is considered a disability if it has a long-term effect on a person’s normal day-to-day activity; a condition is long term if it lasts, or is likely to last, 12 months or more.

Normal day-to-day activity means something that is done regularly on a normal day, and this includes, but is not limited to, things such as using a computer, following instructions, working set times or interacting with people. However, a mental health issue can be considered a disability even if there are no symptoms all the time, or the symptoms are better at some times than at others.

Nobody has to tell their employer, or a potential employer, that they have a disability and that includes a mental health disability. However, when they do, the employer has a legal responsibility to support them. Employers should do all they reasonably can to create an environment and recruitment process where people feel safe and comfortable to talk about disability including any mental health issues.

Employers also have a duty of care under the Health and Safety at Work etc. Act 1974 and the Management of Health and Safety at Work Regulations 1999, which means that they must do all they reasonably can to support their employees’ health, safety and wellbeing.

This includes:

• Making sure the working environment is safe.
• Protecting employees from discrimination.
• Carrying out risk assessments.
• Making reasonable adjustments if required.

*In Northern Ireland The Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 apply.

What are the different types of mental health discrimination at work?

Employers must ensure that individuals, or groups of individuals, are not treated less favourably because of their protected characteristics.

Being treated less favourably constitutes discrimination, so it is against the law for employers to discriminate against a person because of a disability and this covers areas including:

• Application forms.
• Interview arrangements.
• Aptitude or proficiency tests.
• Job offers.
• Terms of employment, including pay.
• Promotion, transfer and training opportunities.
• Dismissal or redundancy.
• Discipline and grievances.

According to the law, discrimination is one type of unfair treatment and disability discrimination in the workplace can happen in six ways; these are:

• Direct discrimination – Treating someone less fairly because of their mental health disability.
• Indirect discrimination – Having policies and/or procedures or work practices etc. that disadvantage someone with a mental health disability.
• Harassment – Someone making jokes or comments etc. that makes an employee feel intimidated, shamed or violates their dignity because of their mental health disability.
• Victimisation – Treating someone unfairly because they have made a complaint of mental health disability discrimination or because they are supporting somebody else who has made a complaint.
• Failure to make reasonable adjustments – This could be not adapting a workspace or not enabling flexible working to someone who has a mental health disability.
• Discrimination arising from a disability – This is being treated unfairly because of something connected to a mental health disability rather than the disability itself such as being denied time off for medical appointments.

What are direct and indirect mental health discrimination?

Direct discrimination

This is when someone is treated differently and worse than someone else for certain reasons such as mental health disability. Not all unfair treatment is unlawful discrimination under the Equality Act 2010. It is only unlawful discrimination if someone is treated differently because of a protected characteristic. Less favourable treatment means someone has been treated differently to someone else who doesn’t have the same protected characteristic as them and they are worse off because of it.

To show direct discrimination, the person will need to compare their treatment with the treatment of someone else who doesn’t have the same protected characteristic as them. The Equality Act 2010 calls this person a comparator. It is not necessary for the person to be in an identical situation as the comparator; however, there must be sufficient similarities between the two people to show that the reason for the worse treatment is the protected characteristic and not something else.

Sometimes it may not be possible to find a real person as a competitor who is in the same or similar enough situation to the person being discriminated against, because the situation may have never happened before. If this is the case, a hypothetical comparator can be used. For example, a person with a mental health disability is dismissed for consistent lateness; however, a non-disabled employee was given a written warning for consistently taking unauthorised additional time at lunch breaks. The comparator is not exact but similar enough to draw a comparison of treatment.

Even if the person treating someone with a protected characteristic differently or unfairly didn’t mean to discriminate against them, or if they didn’t know they were discriminating, it is still unlawful direct discrimination.

Direct discrimination arising from a mental health disability

This is when the disabled person has been treated unfavourably because of something arising as a consequence of their disability. For example, if an employer dismisses an employee because they have had three months’ sick leave. The employer is aware that the employee has a mental health disability and most of their sick leave is disability-related.

The employer’s decision to dismiss is not because of the employee’s disability itself, but because the worker has been treated unfavourably due to something arising as a consequence of their disability, namely, the need to take a period of disability-related sick leave.

However, if the employer can show that they did not know and could not reasonably have been expected to know that the disabled person had the disability, it will not be discrimination arising from disability. The employer may also avoid discrimination arising from disability if the treatment can be objectively justified as a proportionate means of achieving a legitimate aim.

It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.

Indirect discrimination

This occurs when a disabled person is or would be disadvantaged by an unjustifiable provision, criterion or practice applied to everyone, but which puts or would put people sharing the disabled person’s disability at a particular disadvantage compared to others, and puts or would put the disabled person at that disadvantage.

For example, when recruiting for a job, an employer does not consider any applicant who has a gap in their employment history. This stipulation could have a negative effect on people with mental health disabilities who have been temporarily out of the workforce due to their disability.

What steps should be taken if mental health discrimination has taken place?

Steps an employee can take

Anyone who thinks that they have been discriminated against in the workplace has a number of options that they can take to try to redress the situation.

They can:

• Complain informally to their employer.
• Raise a grievance using their employer’s grievance procedures.
• Make a claim to the Employment Tribunal.

These options are not an either/or choice; anyone aggrieved, depending upon the situation, could try them in turn until their employer puts things right. Write down what happened as soon as you can after it happened, or tell someone else about it so they can write it down. Record as much detail as you can about who was involved and what was said or done; however, the problem will sometimes be that something was not done, such as you asked for reasonable adjustments to be made, these were agreed to, but not implemented.

In the first instance, try raising the issue informally via a line manager or HR; making a complaint informally means talking to the person at your workplace who can make the situation better. Although this is informal you should ask your manager or employer for a meeting, so that there is enough time for you to talk about what has happened and to say what you would like them to do.

Be prepared to tell the person you are meeting:

• What has happened.
• What effect it had or is having on you.
• What you want them to do about it, for example, talking informally to the person or people who have done something.

It is a good idea to take your own notes at the meeting, so that you have a record of what was discussed.

At this stage, if the employer does not take steps to redress the situation you could use the organisation’s grievance policy and procedures to issue a formal complaint. Alternatively, you may decide to go straight to the grievance stage. The grievance procedure is a formal way for an employee to raise a problem or complaint to their employer.

 An employee can raise a grievance if:

• They feel raising it informally has not worked.
• They do not want it dealt with informally.
• It is a very serious issue, for example discrimination, harassment or whistleblowing.

An employee should always raise the grievance and take any actions expected of them in the organisation’s grievance process as soon as they can. They should always put the grievance in writing.

The letter or email should include:

• What the grievance is about.
• Any evidence of the discrimination.
• What they want their employer to do about it.

When an employee raises a formal grievance, the employer should arrange to hold a meeting, ideally within five working days of receiving the grievance. When the employer has arranged a grievance meeting the employee should do their best to attend the meeting on the date set and to bring any evidence about the grievance, for example relevant emails etc., to show and discuss at the meeting.

They are also entitled to have a union representative or work colleague present at the meeting for support, and under discrimination law the employee can request to bring someone else, such as a carer for additional support.

With the permission of the person raising the grievance, the companion is allowed to take notes, set out the case of the person raising the grievance, speak for them and talk with them during the meeting. However, the companion cannot answer questions put to the person raising the grievance or prevent anyone else at the meeting from explaining their side of things.

Following an examination of the evidence and, if necessary, an investigation, the employer will tell the employee of the outcome of the grievance as soon as possible and in writing. If the grievance is upheld then the employer should take steps to rectify the situation. However, if the outcome is that no action is needed, the employee has a right of appeal if they feel that the outcome does not resolve the problem or that any stage of the grievance procedure was wrong or unfair.

If an employer does not give the opportunity to appeal, this could be counted against them if the case goes to an employment tribunal. The employer should tell the employee the appeal outcome as soon as possible in writing, including the reason for their decision and whether this is the final decision.

If the employee feels they have tried everything and that their problem is still not resolved, they could in some cases make a claim to an employment tribunal. An employee can make a claim to an employment tribunal if they think someone has treated them unlawfully, such as their employer, a potential employer or a trade union.

Unlawful treatment can include:

• Discrimination.
• Unfair dismissal.
• Unfair deductions from pay.

In order to make a claim to an employment tribunal, an employee must tell ACAS first. A claim to an employment tribunal must usually be made within three months less one day. This is known as the “limitation date”.

Steps an employer should take

If an employee raises an issue of mental health discrimination informally with their employer, the employer should still take it seriously. If not, the problem might be later raised as a formal grievance and a formal grievance might lead to an employment tribunal if it is not resolved. Set up a meeting to discuss the employee’s concerns, and advise the employee that they can bring a work colleague, trade union representative or another relevant person to a meeting for support.

When the employee has explained the issue and what they would like done about it, the employer should keep a record of:

• What the problem is about.
• What was done, such as having an informal meeting.
• What was discussed and who attended any informal meeting.
• Any next steps and timelines agreed and who would be responsible for taking these steps.
• The reasons for any next steps.

The employer should ensure that they follow up with the employee to check that the problem has been resolved for them. If it has not, check that the actions agreed have been taken and find out if anything else can be done.

If the employee raises a formal grievance, the employer should follow the procedures set out in their organisation’s grievance policy and procedure, or at a minimum follow the ACAS guidelines. Employers need to ensure that they follow a formal procedure as failure to do so could affect the outcome if things reach an employment tribunal.

Employers should ensure that:

• Issues are dealt with promptly.
• They act consistently.
• They act calmly, fairly and follow the procedure.
• They carry out any necessary investigations, to establish the facts of the case.
• They allow employees to be accompanied at any formal grievance meeting.
• Following the meeting they decide on what action, if any, to take.
• They communicate the decision to the employee, in writing, without unreasonable delay and, where appropriate, set out what action the employer intends to take to resolve the grievance.
• They allow an employee to appeal against any formal decision made.
• Any appeals should be heard without unreasonable delay.

The action that an employer can take will depend on the specific details of the case and its seriousness. The employer can use mediation at any stage of the procedure. Mediation involves an independent, impartial person helping both parties to find a solution; however, both parties must agree to mediation.

If an employee decides that they want to take their claim of discrimination to an employment tribunal, ACAS will contact the employer to offer early conciliation, if the claimant agrees. This gives both parties the chance to come to an agreement without having to go to a tribunal.

Both parties can still talk through ACAS up to and during the tribunal process, until a judgment is made. This is known as conciliation, rather than early conciliation. If conciliation does not resolve the dispute and the tribunal goes ahead, the case will be heard in public and a decision will be made by a judge.

How to create a supportive working environment

Mental health issues at work are becoming increasingly common. However, employers are still not taking the steps necessary to support good mental health among their employees and they often treat individuals who have mental health problems badly, sometimes amounting to discrimination. If an employee has a mental health issue, it is important that their employer takes it seriously.

Without the right support in place in the workplace, the impact of poor mental health can affect a person’s ability to do a good job at work and their capacity to enjoy their job and their working life. Good equality, diversity and inclusion practices make sure that employment opportunities provided to people are fair and accessible to everyone. They ensure that people are treated as equals, that people get the dignity and respect they deserve and that their differences are valued.

Employers should create an environment where staff feel able to talk openly about mental health. By treating mental and physical health as equally important, employers can help to take away any stigma around mental health issues. Protecting and promoting mental health at work is about strengthening the ability to recognise and act on mental health conditions at work, particularly for anyone responsible for the supervision of others, such as line managers.

Employers could introduce mental health awareness training for managers, which helps them to recognise and respond to employees experiencing any mental health issues. It can also help to build interpersonal skills such as open communication and active listening, so that managers are responsive to their line reports’ needs. Mental health awareness training can also promote a better understanding of how job stressors affect mental health and how they can be managed.

Mental health awareness training can also be valuable to all employees as it improves their knowledge of mental health and helps to reduce any stigma and discriminatory behaviours against mental health conditions at work. It can also help to build skills to manage stress and reduce mental health symptoms.

Safe and healthy working environments are not only a fundamental right but are also more likely to minimise tension and conflicts at work and improve staff retention, work performance and productivity. Conversely, a lack of effective structures and support at work, especially for those living with mental health conditions, can affect a person’s ability to enjoy their work and do their job well; it can undermine people’s attendance at work and even stop people getting a job in the first place.

How to support someone with signs of a mental health issue at work

Many job applicants will be fearful of disclosing information relating to their mental health problems because misunderstanding about poor mental health is still widespread. Under the Equality Act 2010, most job candidates are not required to disclose they have a mental health condition to their prospective employer. There are, however, some exceptions where candidates/employees must tell the employer about their health because of regulations that apply to these professions.

These include:

• Teachers.
• Nurses and doctors.
• The armed forces.

If an employee in any of the above professions doesn’t tell the employer about any health issues including mental health issues, they could face disciplinary action later on.

Although it is unlawful for employers to ask candidates questions about health during recruitment, except in very limited circumstances, there are ways to facilitate disclosure lawfully to ensure people with mental health conditions have equal access to job opportunities.

The limited circumstances when an employer can ask a candidate whether they have a disability, either mental or physical, include in order to:

• Find out whether the applicant will be able to take an assessment for the job.
• Find out whether the applicant will need reasonable adjustments to the application process.
• Find out whether the applicant will be able to do tasks that are central to the job, though the employer should also consider the reasonable adjustments that might be needed.
• Find out if the employer is receiving job applications from a diverse range of people.

Employers should openly communicate that they will make reasonable adjustments for anyone with a mental health disability to be able to participate fairly in the recruitment process and to participate fully in the workplace. This can encourage people to be open about their mental health disability and their needs in the workplace. Employers should also communicate that any disclosure is confidential under the Data Protection Act 2018.

Reasonable adjustments and support may include:

• Flexible application formats.
• Flexible hours or change to start/finish times. For shift workers, not working nights or splitting up their days off to break up the working week can also help.
• Change to the workspace, such as quieter areas, dividing screens etc.
• Relaxing absence rules and limits for those with mental health disability-related sickness absence.
• Return-to-work policies such as phased return, reduced hours gradually building back up.
• Providing regular opportunities to discuss, review and reflect on people’s mental health.
• Mentor or buddy systems, either formal or informal.
• An occupational health (OH) adviser to provide them with information and support.
• Carry out a risk assessment for stress at work, and take action based on the findings.
• Support with managing workload. This might mean more frequent one-to-ones with their manager, or a temporarily reduced workload during times when their mental health condition becomes worse.
• Impact assessing policies or procedures to ensure that they do not unfairly disadvantage people with mental health disabilities.

Supporting employees when they experience a mental health problem is not only about retaining a valuable staff member, but it also sends a positive message about the organisation’s values to other employees and potential employees.

Often people don’t feel able to ask for help when they are struggling, which is why it is vital that managers routinely ask their line reports how they are doing and discuss their mental health, as this helps build up people’s confidence to speak up earlier on and get the help they need sooner.

Line managers know the people in their team and may notice changes in them.

Some clues that a line report is struggling might include:

• Changes in people’s behaviour or mood or how they interact with colleagues.
• Changes in their work output, motivation levels and focus.
• Struggling to make decisions, get organised and find solutions to problems.
• Appearing tired, anxious or withdrawn and losing interest in activities and tasks they previously enjoyed.
• Changes in eating habits, appetite and increased smoking and drinking.

If as a line manager, you notice any of these signs, it is time to start the conversation. While they might not always be indicative of a mental health problem, it is still important to find out and to identify ways to support the employee.

If line managers are mindful of and check the mental wellbeing of all employees in a one-to-one setting, then employees will find it easier to be open about their mental health issues and to ask for any support they need. However, managers should keep in mind that three in four people would say they are fine even if they are struggling, so ask your employees how they are doing regularly so that talking about mental wellbeing becomes a natural part of one-to-one meetings.

Do employees have a responsibility around mental health discrimination at work?

Much of the basis for workplace health, safety and fair treatment is established by employers in the organisation’s values, culture, policies and procedures. However, employees have a great responsibility in contributing to a safe, non-discriminatory workplace.

Much of the responsibility of employees when it comes to discrimination is compliance, and following organisational policies, procedures and training is crucial in minimising risks of discrimination from happening. Employees have a responsibility to follow instructions and abide by the rules and regulations put in place for the protection of themselves and others around them.

Compliance and cooperation go hand in hand when it comes to employee equality and non-discriminatory responsibilities, so employees must be willing to adhere to the standards set by their employer. Employees should also be forthcoming in reporting incidents of discrimination or seeing a potential risk of discrimination. Having a culture of employee compliance and vigilance can be invaluable in helping employers reduce the chances of discrimination in the workplace.

In mentally healthy non-discriminatory workplaces with high levels of wellbeing, people watch out for each other and can ask someone if they are ok. Employees are able to talk openly about mental health at work.

Do employers have a responsibility around mental health discrimination at work?

Once an employer is aware of mental health or disability information, it must be taken seriously. They have legal duties for the health and safety of their employees and to consider making reasonable adjustments. Employers have a general duty of care and responsibility for employee health, including for their mental health and for preventing personal injury. They are also legally required to carry out stress risk assessments and act on the findings. However, any adjustments should be made to help all staff cope and recover, whether or not they have a formal diagnosis.

An employer’s duty of care also includes preventing work-related ill health from occurring. Employers need measures in place for all employees, not just those classed as disabled, to support their mental health and wellbeing at work.

To fulfil their duty of care for both physical and mental health employers should:

• Publish a health and safety policy if they employ more than five people.
• Publish an equality, diversity and inclusion policy.
• Provide adequate training to all levels of employees as appropriate.
• Establish procedures to be followed in the event of discrimination or non-compliance of policies and procedures.
• Hold employees to account should they be found to have participated in any discriminatory actions or behaviour.
• Remind employees of any employer policies, programmes, or other initiatives that support employees’ mental health and wellbeing and encourage employees to take advantage of them.
• Ensure employees know who to contact with questions or where to access more information on mental health resources and employee benefits such as Employee Assistance Packages (EAP) or Occupational Health.
• Provide mental health first aiders in the workplace.
• Provide return-to-work interviews to support a smooth and sustainable return to work following periods of absence for mental health conditions.

Final thoughts

Many employees are still reluctant to raise the subject of mental health for fear of discrimination, while managers often shy away from the subject, afraid of saying the wrong thing and making matters worse or provoking legal consequences. Employers can proactively create a positive attitude towards mental health by encouraging open communication and providing all employees with awareness information and training.