Mental health: no longer a hidden disability

Legal expert Paula Roma reviews recent case law and updated Acas guidance on supporting employees with mental health conditions

Mental health is high profile at the moment. As well as the launch earlier this year of a review into improving workplace mental health support (led by Lord Stevenson and Paul Farmer, CEO of Mind and chair of NHS Mental Health Taskforce), statistics released during mental health week by the Mental Health Foundation show a worrying and expensive picture of the potential effects of poorly handled mental health issues in the workplace:

  • 14.7 per cent (just over one in seven) workers suffer from anxiety, depression and unmanageable stress each year

  • Nearly twice as many women as men in full-time employment suffer from mental health issues

  • 74 per cent of people who have had a mental health problem for more than a year are out of work

  • 55 per cent of those with depression or anxiety lasting for more than a year are out of work

  • 49 per cent of workers would not be comfortable disclosing a mental health issue at work

  • Workplace mental ill-health costs employers around £26bn per year – better mental health support from employers could save up to £8bn a year

  • In 2015, 18 million days were lost to sickness absence caused by mental health conditions

Other issues can arise if mental health matters are handled badly. Long-lasting conditions affecting an employee’s day-to-day activities can be a disability if the impact on such activities is substantial. ‘Substantial’ for these purposes is any impact that is more than minor or trivial. This is a wide definition that can catch a number of mental health problems; depression, for example, can act as a trigger to provide protection to individuals who might otherwise be excluded from disability discrimination protection.

Increased protection

There has been gradually increasing protection for those with disabilities, with tribunals widening definitions to the point that it is often difficult to dispute an individual’s disability.

You don’t need to be an employee to have protection – a job applicant denied employment because of a disability can also claim. In Government Legal Service v Brookes, the GLS was found to have discriminated against Ms Brookes by not adjusting its 'fiendishly competitive recruitment process' to assist her disability, Asperger’s syndrome. The process included a compulsory multiple-choice situational judgement test. Brookes asked for an alternative format, arguing that she would be disadvantaged because of her Asperger's. The GLS refused, offering instead unlimited time to sit the test. Brookes failed and the Employment Appeal Tribunal (EAT) upheld claims for indirect discrimination and a failure to make reasonable adjustments.

Employers need to be aware of the requirement to make reasonable adjustments to recruitment processes and comply with pre-employment health questions guidance. To defend indirect discrimination claims it is necessary to show both a legitimate aim and that the methods used are proportionate.

Any blanket application of policies can lead to issues. Employers defending disability discrimination claims often try to rely on the argument that they are applying a policy that has a legitimate aim and is proportionate in the circumstances.

In Buchanan v The Commissioner of Police of the Metropolis, Mr Buchanan suffered serious injuries following a motorbike accident when responding to an emergency. He also developed serious post-traumatic stress disorder. He was placed on an absence procedure (the unsatisfactory performance procedure), which was robustly progressed. The police argued that the policy was justifiable, but the EAT said it was the treatment of Buchanan at each stage (including the speed of the process) that needed to be justified and had not been.

Acas guidance

Given the complexity of dealing with disability issues, especially in addressing mental health issues that affect individuals in different and inconsistent ways, Acas has this month issued updated guidance – 'Promoting positive mental health in the workplace' – to help employers recognise and deal with mental health issues.

The guidance provides practical steps to address unhelpful attitudes and the stigma attached to mental health issues within the workplace, as well as recommending steps to educate and support staff. The guidance is a good place for a busy HR practitioner to start when asked for advice about how businesses can deal with this difficult area.  

With the ongoing focus on mental health issues, tribunals’ expectations that employers should take a more individual-focused approach and the competitive disadvantage that absence and staff turnover introduce, the requirement on employers to consider a more proactive approach to assisting staff is more important than ever.

Paula Rome is an employment partner at Shoosmiths