Mental health issues in the workplace and disability discrimination

12 May 2021

If you have a mental health condition which has caused you to take time off work, your employer has certain obligations when managing your absence. We explain what these obligations are.

According to the mental health charity MIND, the coronavirus Pandemic “will leave a deep and lasting scar on the mental health of millions in this country.” This is due to the loss of life, the impact of lockdown and isolation and the likely impact it will have on the economy and the job market. MIND say that more than two thirds of adults with mental health problems reported that their mental health became worse during lockdown.

If you have a mental health condition, and as a result have been on sick leave, your employer can manage your absence in accordance with its “managing absence policy”. You should be aware, though, that your employer has a number of obligations to follow.

Duties of your employer

Your employer should handle your mental health issue sensitively. This should include consulting with you and carrying out a proper medical investigation, before any decision to impose any kind of sanction is taken.

Consultation

If your mental health condition has lasted (or is likely to last) for 12 months or more and if it has a substantial effect on your day to day activities, it may amount to a disability under the Equality Act 2010. If so, your employer must carefully consider their duties under the Equality Act. They should meet with you to discuss your condition and find out the nature of it and the impact it has on you personally. They must also consider whether any of your absence is related to your disability.

Your condition might be misinterpreted as misconduct or poor performance. This is what happened in one high profile employment case. The employee was found to have been unfairly dismissed because the employer treated his situation as a misconduct issue, when his behaviour was partly caused by him taking the wrong dose of medication. In addition, the employer hadn't allowed later medical evidence to be considered by the panel.

Medical investigation

If you have a mental health condition you may find it very difficult to articulate your symptoms. A medical investigation is therefore particularly important when it comes to mental health and it's likely your employer will need to obtain a report from your GP or consultant. There may also be other professionals helping you, like a counsellor, who you might want your employer to consult for information. Alternatively, your employer may decide to refer you to occupational health and ask for a specialist report from them.

If you refuse to consent to a medical report, your employer is entitled to make a decision on the information they have available to them. So it's advisable to make your employer as aware as possible of any mental health issues that you are facing and provide as much information as you can.

Making reasonable adjustments

If you are suffering from either long-term absence or persistent short-term absences, your employer should consider adjusting their process to take into account that your absences are disability related. Similarly, if the problem is poor performance then your employer may need to adapt their procedure for improving performance.

Your employer should recognise that if you have a mental health condition, you may, at times, not open or answer letters or pick up the phone. Your employer should also appreciate that you may take much longer to respond to requests for information and you may need prompting and reminding to do things. If your employer is following a performance monitoring procedure with a series of warnings/cautions and opportunities to improve, they may consider modifying the triggers and allowing you a little longer to achieve the required standard.

You and your employer may find it helpful for a trusted friend, trade union representative or family member to help you. Your employer may ask your permission to contact that friend or family member if you are absent.

You can also let your manager know what kind of contact you’d like. For example, whether you'd prefer talking over the phone or through video meetings. You might want to attend a meeting at a neutral venue, away from the workplace. If so, your employer should be prepared to accommodate this.

Other reasonable adjustments for your mental health condition might include:

  • Phasing your return to work over a number of weeks, allowing you to carry out lighter tasks and slowly build up your working days and hours
  • Reducing your hours, particularly if your ability to concentrate for long periods is affected
  • Changing your working hours
  • Being flexible in allowing you to work from home where it is appropriate to do so
  • Reducing your workload (particularly if there’s a suggestion that overwork has caused or contributed to the problem)
  • Allocating a different type of work to you
  • Moving you to work with different colleagues

Making reasonable adjustments was of importance in one employment case where the employee suffered from a mental health condition that was found to be largely caused by work. The Employment Appeal Tribunal decided that the employer should have funded recommended psychiatric treatment and counselling to enable the employee to return to work and cope with work-related difficulties. In these circumstances, this would amount to a reasonable adjustment.

If you are facing any sanctions or dismissal from work because of mental health issues, you should speak to one of our Employment Law Solicitors. We can assess your case and advise whether you are being unfairly discriminated against.

More articles