The new bill
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:
- recruitment personnel and interviewers;
- managers and HR staff on subconscious discrimination;
- yourself on up-to-date advice from mental health charities and Occupational Health.
- statements about mental health in recruitment literature;
- policies on mental health in the workplace.
- sickness absences proactively;
- ill-health by working with employees and their medical advisors;
- reasonable adjustments to the workplace for mentally disabled employees.
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.