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17 May 2019

Mental Health Awareness Week - a look at discrimination arising from disability

4 mins

This week is Mental Health Awareness Week, a time to acknowledge and discuss the challenges, stigmas and unlawful treatment faced by people with mental health conditions. This year’s theme is body image, how we think and feel about our bodies. An open discussion on mental health and body image issues is key to raising awareness of the issues faced by people suffering from those conditions. It also highlights the discrimination and harassment faced by people with mental health conditions in day-to-day life. As with any issue of discrimination, we also need to ensure that the fight for equality and fair treatment of people with mental health conditions is also fought for in the workplace arena.

The Equality Act 2010 (‘the Act’) is the primary protection for individuals and workers against disability discrimination. What constitutes a disability is quite widely defined under the Act, so as to provide broad protection for people with a number of mental and physical conditions and impairments. For example, stress, anxiety and depression are capable of amounting to a disability under the Act.

The Act provides several forms of protection for people with disabilities (and other protected characteristics). This includes protections against discrimination, harassment and victimisation.

There are additional protections relating to disability. The duty to make reasonable adjustments (which applies both in and out of the workplace) is a key protection for individuals who are at a disadvantage because of their health conditions.

The Act also provides those with disabilities with a further protection against being treated unfavourably because of something arising out of their disability. This is often a particularly important protection for people with mental health conditions where their condition give rise to secondary behaviours or effects which their employers treat them unfavourably for.  For example, someone suffering from depression may find it difficult to get up early to get to work on time. If they are disciplined for lateness this might possibly be unfavourable treatment for something arising out of their mental health condition. There are defences available to an employer who does discriminate against a worker in this way, in that if they can demonstrate that the unfavourable treatment was a proportionate means of achieving a legitimate aim, they can justify the treatment. Also they may be able to demonstrate they had no real or constructive knowledge of the worker’s disability.

A recent case concerning this kind of protection was recently brought before the Employment Appeals Tribunal (‘EAT’). In Baldeh v Churches Housing Association, the Claimant suffered from depression and was dismissed for poor performance. One of the concerns the employer raised was the Claimant’s tone in a text message sent to a service user and the Claimant’s communication with colleagues. During the appeal of her dismissal, the Claimant told her employer that her depression sometimes led to changes in her behaviour including saying things that were ‘unguarded’. The Employment Tribunal found there was no evidence to suggest that her “blunt and suggestive” communication arose out of her depression and was not just a personality trait. The EAT disagreed, stating that the Tribunal had failed to consider evidence from the Claimant showing that she would respond aggressively to people when suffering a depressive episode.

The EAT also disagreed with the Tribunal’s finding that the Claimant was not discriminated against because of something arising from her disability, as her aggressive communication with colleagues did not materially influence her dismissal. The Tribunal stated that there were four other issues which the employer raised regarding the Claimant’s behaviour, which by themselves would have resulted in her dismissal in any event. The EAT overruled this, stating that the ‘something’ arising from disability only had to be a significant influence on the unfavourable treatment (in this case the dismissal) for the worker to be discriminated against on these grounds. It does not have to be the sole or principal reason as the Tribunal appeared to be suggesting. The case was referred back to a fresh Employment Tribunal to decide again.

The case exemplifies the importance of the wider protection provided by the Act for workers with mental health conditions that amount to a disability. Not only is it unlawful to discriminate against workers because of their disability, it is also unlawful to discriminate against workers for something arising from that disability and workers should be live to this issue.

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