On 14 September 2012, the Government backed the Mental Health
(Discrimination) Bill; the first key stage in the legislative
process is therefore complete. The changes being proposed seek to
protect mentally ill MPs from losing their seats, allow mentally
ill people to become jurors and permit mentally ill company
directors to continue in their roles. Although it is a Private
Members' Bill and therefore it is not certain that it will
become law, it is indicative of an increasing challenge to
presumptions that people cannot recover from mental illness or be
trusted to be an MP, juror or director if they have suffered from
mental illness.
The legal position
The disability discrimination laws set out in the Equality Act
2010 (the "Act") apply equally to employees who suffer
from mental illness as to those who have a physical disability.
Pre-health questionnaires can no longer be required from a
candidate before a job offer is made. However, the offer can be
made conditional on the successful completion of a pre-health
questionnaire. The employer needs to consider how to manage the
responses in the questionnaire and, critically, how to assess if
the information revealed truly impacts on the requirements of the
job.
The Act states that employees cannot be discriminated against
"because of" a disability and this extends to a family
member's, friend's or colleague's mental health if the
employee's association with that person means the employer has
treated them less favourably than an employee without such an
association. In addition, an employee who advises his employer,
perhaps over an informal after-work drink, that he has previously
suffered from depression will be protected under the discrimination
laws if the employer presumes that the employee still suffers from
depression and treats him less favourably as a result.
The position on the ground
Charities such as MIND tell us that acknowledgment of mental
health discrimination lags far behind the more progressive
attitudes towards physical disabilities. In 2006 the Disability
Rights Commission (now part of the Equality and Human Rights
Commission) conducted a survey of 900 interviews with small and
medium sized employers and found that over 60% had no procedures in
place for managing staff with mental health problems.
Also in 2006 the Sainsbury Centre for Mental Health estimated
that work-related mental ill-health such as stress, depression and
anxiety accounted for 10.5 million lost working days. Whilst these
illnesses might not be classed as disabilities under the Act they
result in staff turnover and loss of production. These mental
health surveys are in need of an up-to-date review but there is
little doubt that the issues remain live and topical. In the recent
case of Crisp v Iceland Foods Ltd, the Employment
Tribunalfound thatIceland had discrimination against Ms Crisp and
made discriminatory comments in relation to her panic attacks. In
addition to the financial compensation awarded to Ms Crisp, the
Employment Tribunal made the unusual recommendation that Iceland
should train some of its HR staff and area managers by 23 May 2013
on disability discrimination with a mental health focus.
We suggest that employers consider the following three key areas
in order to manage mental health in the workplace:
Train
recruitment personnel and interviewers;
managers and HR staff on subconscious discrimination;
yourself on up-to-date advice from mental health charities and
Occupational Health.
Write
statements about mental health in recruitment literature;
policies on mental health in the workplace.
Manage
sickness absences proactively;
ill-health by working with employees and their medical
advisors;
reasonable adjustments to the workplace for mentally disabled
employees.
Resources:
The Sainsbury Centre for Mental Health's report on Mental
Health at work:
Crisp v Iceland Foods Ltd (ET/1604478/11 &
ET/1600000/12)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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