11 May 2017

Whilst many physical disabilities are self-evident, ‘invisible’ or ‘hidden’ conditions such as depression are not always as easy for employers to spot and therefore may be mishandled.

Mental health problems cost employers a staggering £30 billion each year*. With the wellbeing of their employees and businesses at stake, employers need to recognise — and respond appropriately to – mental health issues in the workplace.

Whilst many physical disabilities are self-evident, ‘invisible’ or ‘hidden’ conditions such as depression are not always as easy for employers to spot and therefore may be mishandled.

When is a mental health issue considered a disability?

Under the Equality Act 2010, disability is defined in the following way:

A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities

The term ‘mental impairment’ covers a broad range of conditions from Asperger’s syndrome to post-traumatic stress disorder (‘PTSD’). It can also extend to depression – the most common mental disorder in the UK. Conversely, it is worth nothing that certain conditions are expressly excluded as disabilities. This includes, for example, alcoholism and kleptomania.

Suffering from a mental health problem is not, by itself, enough to satisfy the definition of a disability under the Act. Recent case law in this area suggests that courts are more concerned with the second half of the definition – whether the mental impairment has a substantial, long-term impact on the individual’s day-to-day activities.

The courts also place a great deal of importance on supporting medical evidence. This is particularly relevant in cases where an employee is absent from work with work-related stress. For example, in Herry v Dudley MBC, the Employment Appeal Tribunal (‘EAT’) stated:

Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise…are not of themselves mental impairments: they may simply reflect a person’s character or personality.

In a decision welcomed by employers, the tribunal ruled that the claimant’s absence from work due to work-related stress did not amount to a disability. The tribunal found – in a decision which was upheld by the EAT – that there was insufficient medical evidence to demonstrate that the claimant’s stress had a substantial long-term adverse effect on his ability to carry out normal day-to-day activities.

Practical considerations

There are a number of practical steps that employers can take to manage mental health issues in the workplace and reduce both the risks and costs associated with them:

  • Introduce an appropriate policy in the staff handbook. This should set out a clear mechanism for employees to raise any mental health issues affecting them in confidence. It should also address common symptoms which managers and/or colleagues should look out for;
  • Provide disability and equality training for all employees to raise awareness of mental health issues and promote wellbeing; and
  • Offer access to an external counsellor.

If an employer has concerns about an employee’s attendance and suspects they are suffering from a mental impairment which could be classed as a disability under the Equality Act, it would be advisable to ask the employee to attend an examination with occupational health.

An employer has a duty to make reasonable adjustments for an employee where it knows, or could reasonably be expected to know, that the employee is disabled and is likely to be placed at a substantial disadvantage as a result of that disability. The best way for an employer to assist effected employees is to ask a qualified medical professional what reasonable adjustments it should consider.

Furthermore, if an employer is aware of a potential disability and proceeds to terminate an employee’s employment without considering up-to-date medical evidence, the dismissal is likely to be discriminatory. As workers can bring discrimination claims without the need for a qualifying period of service, employers should be mindful of the potential risks in dismissing an employee with a suspected disability. This is particularly important given that damages in such claims are uncapped – although the amount is generally linked to actual and/or potential future loss suffered by the employee.

*according to the Advisory, Conciliation and Arbitration Service (Acas).

The publication of this article coincides with Mental Health Awareness Week, which runs from 8-14 May 2017. This year, the Mental Health Foundation’s campaign focuses on the ways in which individuals can cultivate positive mental health. For more information, please visit: https://www.mentalhealth.org.uk/campaigns/mental-health-awareness-week