What constitutes mental health discrimination in the workplace?

RECOGNISING DISCRIMINATION

There is a duty not to discriminate against an individual because of, or
on grounds relating to, a disability. Discrimination can take various forms:

1 Direct discrimination arises when someone is treated less favourably because of a disability. An example would be if someone was rejected for promotion because they have long-term mental health issues.

2 Indirect discrimination occurs if a provision, criterion or practice (PCP) is applied to everyone equally, but the PCP has an adverse effect on people with a disability compared with people who do not have that disability. For example, if a practice is put in place whereby any employees failing to meet attendance targets will be disciplined, this has the potential to have an adverse effect on someone who is regularly absent because of a disability. A PCP can sometimes be objectively justified and therefore be lawful, and employers would need to show that it is a proportionate means of achieving a legitimate aim. An example could be a policy that travel agents must be in the office during working hours (and therefore cannot work from home) as their role is to sell holidays to customers in person.

3 Discrimination on the grounds of something arising from disability, where someone is treated less favourably not because of the disability itself, but because of a consequence of that disability. For example, if an employer disciplines an employee for poor absence levels, when the absence in question arose because of a disability.

4 A failure to make reasonable adjustments is where a disabled employee is disadvantaged as a result of the employer not making an adjustment which would be reasonable in the circumstances and which would have alleviated that disadvantage. An example of a reasonable adjustment might be allowing an individual to work different hours so they can avoid anxiety brought on by rush hour travel.

5 Victimisation is where an employee is subjected to a detriment because they have carried out a “protected act” (which can include making a complaint of discrimination). An example would be refusing to give a former employee a reference because they complained about disability discrimination.

6 Harassment is unwanted conduct which has “the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them” on the grounds of a protected characteristic, which includes disability. Employers can be held liable for harassment by one of their employees. But if they can show that they took “reasonable steps” to prevent discrimination, this can be a defence. This needs to be more than just having a policy in place, and can include such measures as providing training and taking a zero-tolerance stance on harassment.

James Williams is a partner at law firm Hill Dickinson and he recently spoke about the legalities of mental health at the Abta Mental Health and Wellbeing in the Workplace conference.