Mental health & the Equality Act: tips for employers

During Mental Health Awareness Week, employers may be thinking about things they can do to support employees suffering with their mental health.

Besides the general duty of care that employers have to protect staff health, safety and wellbeing, in certain circumstances, a mental health condition may amount to a disability under the Equality Act 2010. In these instances, employers have a duty not to discriminate against a worker and to make reasonable adjustments.

We set out below what amounts to a disability in these situations, and what you can or must do as an employer to support.

When might a mental health condition amount to a disability under the Equality Act?

A mental health condition would be considered a disability if – as defined under the Equality Act 2010 – it has a “substantial and long-term adverse effect” on the individual’s ability to carry out normal day-to-day activity.

A condition is considered ‘long-term’ if it lasts (or is likely to last) 12 months. ‘Normal day-to-day activity’ is defined as something that someone might do regularly in a normal day, including the “ability to participate fully and effectively in working life on an equal basis with other workers.”

If your staff member is suffering psychologically

If you have a staff member suffering from poor mental health, you should treat it in the same way as you would a physical illness and consider what support they might need. As an employer, you have a duty of care to your employees to support their health, safety and wellbeing.

Additionally, you should consider whether the condition might amount to a disability under the Equality Act, and whether you should make any reasonable adjustments to enable your staff member to undertake their role.

You must make reasonable adjustments if:

• you know, or could be reasonably expected to know, that a staff member is disabled
• any disabled employee or job applicant asks for adjustments
• someone who is disabled is struggling with any part of their role
• someone’s absence is linked to their disability.

You might wish to order an occupational health report to better understand whether the condition amounts to a disability and, if so, what adjustments and support might be required in the workplace. What should also be considered is if the individual in question takes medication which might impact their ability to undertake their role.

You should be careful not to discriminate against the employee due to their mental health, including considering whether any of your policies, criterion or practices might adversely affect them due to their condition.

What should I do?

Mental health problems can be hard to spot, come on suddenly or gradually, and fluctuate over time. This can make it challenging as an employer to put the right support in place and to ensure you are complying with the Equality Act. The following steps would be helpful:

• having open, supportive conversations with your employees and fostering an environment where they feel comfortable sharing any issues they have
• having ‘mental health champions’ or ‘mental health first aiders’ that staff can go to for guidance support
• having an employee assistance programme in place
• making sure line managers are trained on the Equality Act and how to support their team members with such conditions
• reviewing your policies and procedures to assess whether they might pose challenges for staff suffering from mental health conditions
• seeking support from occupational health if you are unsure how best to support an employee suffering with their mental health.

If you are at all concerned about how to best support an employee with a mental health condition – particularly if it might amount to a disability – you can speak to a member of our employment law & business immigration team.

Our Legal 500-rated employment law & business immigration team are experts in guiding businesses of all sizes and backgrounds through a range of issues that may arise, including those related to mental health.