Mental Health Discrimination at Work

By Andrew Willis
01 Apr 2021

Sometimes, people treat those who have mental health problems differently at work because of their mental health condition. This can be discrimination and, if an employee experiences discrimination at work, they have a legal right to challenge it.

If they do, this can lead to a costly employment tribunal. Discrimination cases have an unlimited fine and no minimum service period for employees, so they can devastate a business.

This makes it a priority to ensure there is no mental health discrimination in the workplace. But discrimination law is complicated and it may occur in your business without your knowledge.

Here, we’ll look at what is discrimination against mental health at work and how to avoid it.

What is mental health discrimination?

Discrimination is when an employer or coworker treats someone differently based on one of the protected characteristics.

Discrimination due to mental health is a bit more difficult to define than other examples. Because, while mental health isn’t directly a protected characteristic, disability is.

The Equality Act 2010 defines a disabled person as someone with a physical or mental injury. It must be substantial or long-term (likely to last over 12 months) and affect their ability to conduct day-to-day activities.

So for discrimination based on mental health to be unlawful, the mental health issue needs to fit the definition of a disability. The employer also must know—or be reasonably expected to know—about the disability.

Types of discrimination

There are six types of disability discrimination under the Equality Act 2010.

  • Direct discrimination
  • Discrimination arising from disability
  • Indirect discrimination
  • Harassment
  • Victimisation
  • Failing to comply with the duty to make reasonable adjustments

Direct and indirect discrimination in mental health

Direct discrimination is where someone treats an employee unfairly because of a protected characteristic.

Discrimination against mental health in the workplace occurs mainly through these forms. They occur from direct treatment or practices that affect employees.

For example, they do not offer an employee a promotion because they have depression. But they offer their colleague who does not have depression a promotion – even though he has less experience and fewer qualifications.

There are a couple of types of direct discrimination that can also occur.

  • Discrimination by association: worse treatment because of a connection or association with another person with a disability.
  • Discrimination by perception: worse treatment because a person or organisation believes someone has a disability when they don't.

Indirect discrimination is not as overt. It’s where a practice that applies to everyone inadvertently disadvantages someone with a protected characteristic. For example, An employer only offers promotions to people who have a driving licence and are able to drive even though this is not a key requirement of the job. This discriminates against people with mental health problems that prevent them from holding a driving licence.

Harassment and mental health

The Equality Act defines harassment as conduct that violates dignity or produces an unpleasant environment. For it to be discrimination, it needs to link towards a protected characteristic.

For example, if a colleague finds out their peer has an eating disorder and makes offensive remarks in the office about people with anorexia. This can happen in or outside of the workplace, as harassment may begin outside, but the feelings will continue into the workplace.

Victimisation of someone with a mental illness

This is the mistreatment of a person because they are making a complaint about discrimination or harassment.

For example, an employee complains to their employer about disability discrimination. After this, the manager refuses them promotion because their loyalty to the company is in question.

Failure to make reasonable adjustments

The Equality Act says that employers and service providers should make reasonable adjustments if an employee is at a substantial disadvantage compared to other people who do not have a mental health problem.

Expert support on discrimination and mental health from Croner

Mental health and wellbeing will be a big part of all your employee’s working lives. It is important to recognise and account for this.

Our experienced employment law and HR advisors can help you navigate this difficult subject. With expert advice, you can be sure you are making the right decisions.

Our experts provide free help, support, and advice tailored to your requirements. Call us for free today on 01455 858 132

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.