The Equality Act gives disabled employees the right to not be discriminated against in work, and a right to reasonable adjustments* if they need them. But poor understanding of this leaves employees unable to challenge their workplace if and when they face discrimination on the grounds of a health condition.
Lack of clarity
A lack of clarity in the Act’s wording means many people confused are confused about whether they are entitled to the Act’s protections. At the moment, a mental health problem qualifies as a disability under the Act if it has:
- A substantial adverse effect on your ability to carry out normal day-to-day activities;
- If it has lasted, or is expected to last 12 months or more; or recur.
When given the definition, however, one in three people in Mind’s survey either felt that their mental health problem did not fit the definition or weren’t sure if it did. In reality, many people with a mental health problems are covered by the Act but don’t realise it.
Many don’t know what “substantial adverse effect” meant, while others believe that because their mental health fluctuates from good to poor they don’t think they would meet the criteria.
Jaabir Ramlugon, 33, North London, has borderline personality disorder (BPD) and has previously experienced psychosis (hearing voices) and suicidal thoughts. In 2015, he was working as a Technical Support Engineer in computing for an unsupportive employer in the City and became extremely unwell.
Jaabir said: “At the time I didn’t know that my mental health problems would be covered by the Equality Act 2010 and although I told my employer about my mental health problems, they decided it was grounds to dismiss me for being ill after an occupational health assessment deemed me unfit for work for at least a few months. My employer told me they had made reasonable adjustments, which simply were not true.
“The toxic nature of the workplace combined with the stressful type of work led me to become very unwell. Until I was dismissed, I took time off sick and the whole time I was off, I didn’t hear from my employer, or any of my colleagues, once.
“Things got so bad that I even attempted to take my own life. I ended up leaving the role which was the best decision I could have made, but it shouldn’t have to be like that. I now work for my local Mind who are much more supportive if ever I experience a bout of poor mental health. I’m also now much more upfront about my mental health problems with employers.”
Denise, 51, from Bath, had to seek legal advice after her prospective employer withdrew their job offer when they found out about her bipolar disorder and some physical health problems.
Denise said: “I’ve been a qualified mental health nurse for years and was thrilled to be offered my dream role. Despite successfully securing a job after the interview, I was shocked and upset when they retracted their offer based on stigmatising and inaccurate assumptions about how my mental and physical health would impact on my ability to carry out the role, including the shifts and hours.
“The Equality Act 2010 helped me during the employment tribunal to receive compensation, showing that I had been discriminated against by my employer. I’d like to see greater awareness among employers of their responsibilities to accommodate and make adjustments for disabled staff, including those of us with mental health problems.”
Nine in ten people who felt they didn’t meet the definition of disabled said that they didn’t think their mental health problem had a substantial negative effect on their ability to do normal daily activities. But half of these people reported that their mental health affects them at work. Under the Equality Act definition, substantial is defined as ‘more than minor or trivial’, so a condition that affects a person at work should meet the criteria.
Over half of the people who didn’t think the definition of disabled applied to them cited the reason that their mental health problem hadn’t lasted or wasn’t expected to last 12 months.
This part of the definition means many people who experience fluctuating conditions don’t feel they can access the support, reasonable adjustments and protection they need – often meaning that they struggle to stay in work.
Vicki Nash, Head of Policy and Campaigns at Mind, said: “There is a huge gap in awareness among those of us with mental health problems that we could be covered by the Equality Act 2010. Ahead of the general election, we’re calling on the incoming Government to make sure they address this issue.
“This next Government must commit to clarifying the definition of a disability under the Act to make sure staff with mental health problems have better access to rights and protections in work. This will help to protect them from discrimination in the first place, and to challenge their workplace if they are discriminated against on the grounds of a health condition, enable people to challenge this.
“While mental health problems can impact on your day-to-day life and work, it’s important to remember that – with the right support – those of us with mental health problems can and do make a valuable contribution to the workplace.”