Two-fifths of employees with mental health problems unaware of right to legal protection

But experts warn that organisations shouldn’t wait for a disability classification before offering reasonable adjustments

More than two in five people with mental health conditions are unaware that this could be classed as a disability, and could be missing out on legal protections or helpful adjustments at work, a mental health charity has said.

A poll of more than 1,700 people with mental health problems, conducted by mental health charity Mind, found 44 per cent did not realise they could be classed as having a disability if their condition substantially affected their ability to carry out day-to-day activities, and if they have had the condition – or it is expected to last – for more than 12 months.

The survey also found that, once given the definition of a disability under the Equality Act 2010, 54 per cent of respondents felt they met the criteria.

Rachel Suff, senior employment relations adviser at the CIPD, said the survey’s findings underlined the need for more workplace education and awareness around mental health. The Equality Act also needed to be reformed and made more inclusive, she added.

“The law doesn’t necessarily help because there’s quite a high bar in terms of a mental health condition meeting the definition in the Equality Act,” she said. 

Suff also highlighted that a lot of mental health conditions can fluctuate, making it difficult for individuals to know if they have met the Act’s time frame condition. However, organisations should not wait for an employee’s condition to be classified as a disability before making reasonable adjustments, she said.

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“It’s good practice for employers to make changes to support people’s mental health at work. Most conditions are at the lower end of the mental health spectrum, and just small changes to how they work can make a big difference to their ability to manage that,” said Suff.

Vicki Nash, head of policy and campaigns at Mind, called on the next government to clarify what constitutes a disability so staff can access the appropriate rights and protections. “Among those of us with mental health problems, there is a huge gap in awareness that we could be covered by the Equality Act,” she said.

“This next government must commit to clarifying the definition of a disability under the Act... This will help to protect [employees] from discrimination in the first place, and… if they are discriminated against on the grounds of a health condition, enable them to challenge this.”

Nash added that “with the right support, those of us with mental health problems can and do make a valuable contribution to the workplace.”

David Price, CEO of Health Assured, reiterated that being classed as having a disability entitles a worker to the right not to be treated less favourably because of this, and to have reasonable adjustments made.

“If an employer were to take action against an employee for reaching pre-set absence levels, or deny an employee an attendance bonus based on a number of absences which included those related to mental health, there is a risk of a discrimination claim,” he said.

“Because of this, employers should think carefully when treating mental health days in the same way as all other sickness absence.”

Emma Bartlett, a partner at Charles Russell Speechlys, said: “Employers do not always understand that they do not need to have been told by the employee about their condition or have received a formal diagnosis for the employer to be fixed with knowledge that the employee should have the benefit of reasonable adjustments and protection from discrimination arising out of their condition.”

She said employers should take reasonable steps to if they suspect an employee may be disabled to understand how a condition might be affecting them.

Bartlett added that it was a common misconception that reoccuring conditions that may only have an adverse impact on an individual for short periods of time are not classed as a disability, and said every case should be treated individually.

“Normal day to day activities for one person may not be the same for another, so you have to focus on how it affects each individual,” she said.