Mental health issues are often in the headlines. But if you’re battling with your own mental health issues, you may well feel isolated and alone. Mental health illness can have a profound effect on your ability to work, socialise and in extreme cases, can even affect your ability to perform simple daily tasks. If you find yourself suffering from poor mental health whilst employed, it can cause some very real problems, but you do have a measure of protection against mental health discrimination at work.

Mental health and the workplace

Problems with your mental health can occur at any stage of life and can affect almost anyone. The symptoms can be very difficult to talk about and unfortunately, bosses do not always respond appropriately or realise that you are ill.

What is mental health discrimination?

The Equality Act 2010 protects disabled people from unfair treatment. Discriminating against someone or treating them unfairly because of their mental health or mental illness can be a type of disability discrimination. It’s important to note that you do not need a physical disability to suffer disability discrimination.

However, whether you are protected will depend on your particular circumstances, and the level of impairment that your mental health causes. In order to bring you within the protection of the Equality Act, your mental illness must be a “long-term impairment which has a substantial negative effect on your ability to carry out everyday activities”. Long term normally means 12 months or more or a reoccurring illness. If you’re in any doubt about whether you’re covered by the legislation you should consider asking your doctor or taking legal advice.

Examples of what is and isn’t covered

If you suffer from occasional mild depression you may not be protected against mental health discrimination whereas someone with a prolonged and debilitating illness such as bipolar disorder is much more likely to be protected.

What amounts to being treated unfairly?

You may have been discriminated against if you have been treated less favourably or are put at a disadvantage because of your illness. That means you might not have got a promotion or been offered a job because of your illness or circumstances arising from your illness (i.e. because you’ve taken sick leave for it).

Indirect mental health discrimination

You may also have suffered indirect discrimination because of your mental illness. Indirect discrimination occurs where:

  • an organisation has practices or arrangements that seem to treat everyone equally,
  • but those practices or arrangements put you and others with your disability at a disadvantage.

In these circumstances, the organisation doesn’t have to know about your disability to be guilty of discrimination, but they will need to show that the practices or arrangements were justified.

Victimisation and harassment

You might have been bullied, victimised or suffered harassment as a result of your illness and this may also amount to discrimination. Discrimination may also occur when you are treated unfairly because of your connection to someone who has a mental health disability, for example because you supported a colleague with mental health issues.

Showing a link between your disability and the discrimination

You will have to show that there is a link between your disability and the way you’ve been treated. This is not always immediately obvious or easy, but you don’t always have to show an example of a non-disabled person who was treated better than you.  You just have to show that you were treated unfairly for reasons connected with your mental illness.

What are your rights?

The Equality Act protects you from mental health discrimination at work and when applying for a job. Your employer may also be required to make reasonable adjustments to your workplace to ensure you are able to do your job. An example of making an adjustment might be to allow you to phone a counsellor when needed during the day, to take time to go to appointments or to allow a more flexible way of working to help you manage your illness and remove or reduce any disadvantage you might be at without the adjustments.

What should you do if you’ve been discriminated against?

Do bear in mind, that your employer may not be aware of your illness or the extent to which it affects you. So, the first step should be to try and talk to your employer. This may not be easy but consider asking a friend or colleague to support you if you find it very difficult. You could also consider raising the issue with a manager or union rep.

If talking to your boss or representative doesn’t resolve the situation, you should follow your employer’s grievance procedure. Again, you may want a representative or friend to support you through the process, or you might consider taking legal advice.

Legal proceedings

Finally, if your employer’s grievance procedure doesn’t resolve the issue, you may consider issuing legal proceedings in an employment tribunal. You should take legal advice before doing so but you need to act fast. You must bring any claim withing 3 months of the alleged discrimination. You may bring a claim for discrimination or there may be other claims you should and can make such as unfair dismissal or constructive dismissal. This can affect the amount of any award the tribunal makes.

Awards in respect of mental health discrimination

If your discrimination claim is successful, the tribunal may make a number or orders. The tribunal can order that your employer pays compensation for:

  • any money you’ve lost because of the discrimination (i.e. wages, if you’ve lost your job or unpaid holiday pay)
  • hurt or distress you’ve suffered or personal injury, such as depression.

In rare cases, and when an employer’s behaviour has been particularly bad, the tribunal can also order an aggravated damages payment. You might in some circumstances be entitled to other payments such as redundancy pay. The amount you are awarded will depend on the particular circumstances of your case.

Don’t suffer in silence

The important thing to remember is that however difficult things may seem, you don’t have to suffer in silence and help is available. If you’d like to know more about mental health discrimination and what you should do, please get in touch.

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