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- A disability is one of nine protected characteristics under the Equality Act 2010.
- An employee with a mental health condition that is considered a disability is protected by discrimination law.
- Unfair treatment, prejudice, or negative attitudes directed towards someone because of their mental health condition is mental health discrimination.
- There are different types of discrimination at work, including direct discrimination, indirect discrimination, harassment, and victimisation.
- Employers are legally required to make reasonable adjustments for mental health if any employee has a mental health condition that classifies as a disability.
As an employer, it's important to understand your responsibilities when it comes to mental health discrimination at work. Sometimes, people with mental health conditions are treated differently in the workplace: this can be discrimination and if it happens, your employee has a legal right to challenge the offence.
Employment tribunals can be costly but it's not just about the money: by understanding what mental health discrimination means and taking steps to avoid it in your company, you’ll build an inclusive and diverse team that feels safe and able to bring their full selves to work.
But discrimination law can be complicated and it might happen in your company without your knowledge.
Let’s find out more. Here, you’ll learn about what mental health discrimination at work is, the different types of discrimination, how to avoid it, and what’s meant by reasonable adjustments for mental health.
What is mental health discrimination at work?
Is a mental health issue considered a disability?
Before we get into mental health discrimination at work, we need to first unpick a few things around mental health and disabilities.
The term ‘disability’ doesn’t just mean a physical or sensory impairment: if someone on your team has a mental health issue, they might be protected by disability discrimination law.
The Equality Act 2010 replaced the Disability Discrimination Acts 1995 and 2005 to cover more types of discrimination and extend direct disability discrimination law beyond the workplace. But, we’re here to talk about mental health discrimination at work so we’ll keep focused on exactly that.
A disability is one of the nine protected characteristics covered by the Equality Act 2010. Under this act, it's illegal to discriminate against anyone because of a disability, their age, sex, religion, race, and sexual orientation, as well as if they’re pregnant or on maternity leave, or married/in a civil partnership.
We mentioned earlier that discrimination law can be complicated and when it comes to mental health discrimination at work, here’s one reason why: while disability is one of the protected characteristics, mental health is not.
As a result, discrimination due to mental health is only unlawful if the mental health condition fits the Equality Act’s definition of a disability:
A disability is a physical or mental impairment that has a substantial and long-term (12 months or more) negative effect on an individual’s ability to do normal daily activities.
In addition, you, as the employer, should know — or be reasonably expected to know — about your employee’s disability. Some people may not tell you, their employer, that they have a disability. This could be for a number of reasons: they may not realise their condition classifies as a disability, they might be worried how you’ll react, or perhaps they just don’t want anyone to know. However, employees are still protected from discrimination if you, again as the employer, could be reasonably expected to know they have a disability.
An example given by Rethink talks about Ari, who’s been struggling with his grief after the loss of a close friend a year ago. While Ari hasn’t been diagnosed with a mental health condition, his grief is significantly affecting his everyday life in the long-term and as a result, he’s often taking time off work. In this example, Ari’s employer might reasonably expect that Ari has a mental health disability and should focus on supporting him through this challenging time.
Finally, and this is important, according to the Equality Act, none of your employees need to have their mental health condition diagnosed in order for it to classify as a disability. They do however, need medical evidence that their ability to carry out normal day-to-day activity is impaired. This usually takes the form of a doctor's note.
Mental health discrimination at work
Mental health discrimination at work refers to the unfair treatment, prejudice, or negative attitudes directed towards employees or job applicants based on their mental health conditions or challenges.
Mental health discrimination at work refers to any unfair treatment, prejudice, or negative attitudes aimed at employees or job applicants based on their mental health conditions or challenges. An individual experiencing mental health discrimination can be treated less favourably than their colleagues or put at a disadvantage. There are different types of discrimination and they can all harm not only the employee being discriminated against, but the overall workplace culture, morale, and productivity, too.
Download our mental health at work discrimination policy template
Prevent mental health discrimination in your company by using this template to build your own mental health discrimination policy
4 types of mental health discrimination in the workplace
Mental health discrimination at work isn’t always clear to see: there are different types of discrimination and it's possible for someone to experience mental health discrimination in more than one way.
Here are four types of discrimination and some examples of mental health discrimination at work for each type.
1. Direct discrimination
Direct discrimination is when someone is put at a disadvantage or treated less favourably compared to others because of:
- Their own disability
- The disability of someone they know (discrimination by association)
- A perceived disability, which they do not have (discrimination by perception)
Let’s look at some examples of mental health discrimination at work for each type of direct discrimination:
- Laura has a mental health condition that classifies as a disability. Laura has depression but has been a hard-working Product Manager for two years and is well-placed for a promotion. When the time comes, Laura isn’t promoted to Senior Product Manager. Instead, her colleague, who’s been at the company for just 10 months and has less experience in general, gets the promotion instead. Laura has been directly discriminated against because of her mental health condition.
- Adam cares for his Mum, who has bipolar disorder. Adam’s Mum has bipolar disorder and he often has to take time off work to care for her. At work, Adam isn’t regularly invited to team lunches or evening socials, and is given low-priority projects to work on. Adam doesn’t have a mental health condition himself but he’s being treated less favourably than others because of his caring duties. This is an example of discrimination by association.
- Michael is perceived to have a mental health issue. Michael finds interviews nerve wracking and struggles to express himself. In an interview for a new marketing role, the interviewers assume he has a mental health issue. Despite having the right experience and qualifications for the role, Michael doesn’t progress to the next round of interviews. He’s been perceived to have a disability and has been discriminated against as a result.
2. Indirect discrimination
Indirect discrimination is when a rule or policy applies to everyone but which puts someone with a disability at a disadvantage. Here, disability doesn’t mean every disabled person: instead, it means people with a particular disability. In terms of mental health, this could be something like obsessive compulsive disorder (OCD). The indirect discrimination happens when, under a particular rule, everyone with OCD would be at a disadvantage.
It’s worth noting that for this type of discrimination, it doesn’t matter whether you knew about any disabilities on your team: instead, you need to plan in advance and think about how your policies may affect people with mental health conditions. Additionally, if you or your company can show that the rule or policy was justified, it's no longer indirect discrimination.
Let’s untangle that with an example of mental health discrimination at work for indirect discrimination:
- A company has strict working hours of 9am-6pm, with a one-hour lunch break at 1pm. One of the company’s employees, Alex, has an anxiety disorder that’s triggered during peak rush hours. His company’s working hours policy means that Alex struggles to cope with the increased stress of travelling during rush hour, leading to a decrease in his job performance and wellbeing. In contrast, his colleagues without anxiety find the working hours fine as they’re able to travel during rush hour without any negative consequences on their mental health. By introducing these working hours, Alex’s company has indirectly discriminated against him: a seemingly neutral rule disproportionately impacts Alex, or someone else with an anxiety disorder, even though there was no intention to single them out.
Now, two things can happen here:
- If Alex’s employer is able to justify their working hours for all employees by showing it's both for a good reason, and appropriate and necessary, it's not indirect discrimination.
- Alex’s employer could improve the situation by making reasonable adjustments for mental health. We’ll cover that in more detail later on, but for now it’s important to know that many examples of indirect discrimination can be improved by an employer making reasonable adjustments.
3. Harassment
Harassment at work isn’t purely about something explicitly sexual or offensive. It happens when someone experiences unwanted behaviour that violates their dignity or creates an intimidating, hostile, humiliating, or offensive environment, in response to any of the nine protected characteristics.
Let’s look at an example of mental health discrimination at work for harassment:
- Danielle has an eating disorder and often chooses not to join her team when they’re in the kitchen at lunchtime or going out to buy food. Danielle’s team are aware of her situation but a couple of them make a few offensive comments about people with bulimia within earshot. These comments leave Danielle feeling embarrassed, uncomfortable, and ashamed. In this scenario, Danielle is experiencing harassment at work for her eating disorder.
4. Victimisation
Victimisation at work happens when an employee is treated unfavourably or put at a disadvantage by their company because they’ve made an allegation about discrimination or are supporting someone who’s made an allegation.
Here are a few examples of mental health discrimination at work for victimisation.
- Sam and his manager agreed on some reasonable adjustments to support Sam’s depression in the workplace, but since their meeting, there’s been no further action. Sam has raised this with his manager a couple of times, but eventually made a formal complaint because his requests and concerns were being ignored. Since then, Sam has noticed a change in his manager’s attitude towards him: his work is being criticised in front of others, he’s getting fewer interesting projects, and his manager has stopped encouraging him to apply for a promotion.
- Amy has anxiety and is making a complaint to her employer about disability discrimination. Her colleague, Max, supports Amy’s cause: he doesn’t have a mental health issue himself but has seen a few instances that lead him to believe Amy is right to complain. A few weeks later, Max has a meeting to talk about moving to a new team in the same company. The manager of the new team doesn’t approve the move because she thinks Max is a ‘trouble maker’ and doesn’t have the company’s best interests at heart. Here, Max is being victimised for supporting Amy.
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What are reasonable adjustments for mental health?
The Equality Act 2010 means that employers have to make reasonable adjustments for employees with disabilities to make sure they’re not disadvantaged in the workplace. The idea behind making these changes is to prevent mental health discrimination at work and to build an inclusive working environment.
Failing to make reasonable adjustments for mental health that are appropriate and necessary for an employee counts as mental health discrimination at work.
What counts as ‘reasonable’?
An employee isn't entitled to any adjustments they like. 'Reasonable' means considering how effective, practical, affordable and disruptive that adjustment would be — as well as taking into account the type and size of your company, and the requirements of the role itself.
Most adjustments cost nothing and if they do, the Department of Health says the average spend is just £75. Remember, any reasonable adjustments for mental health that you make should be at no cost to your employee.
5 mental health reasonable adjustment examples
There’s no set list of what a reasonable adjustment for mental health can be because:
- What’s reasonable for one company may not be reasonable for another
- Everyone requiring reasonable adjustments for mental health will have their own individual needs
That being said, there are plenty of areas within your company that you can reasonably adjust. Here are five examples of reasonable adjustments for mental health that we offer at Spill:
- Time off work. This might be recurrent and short, for example having a couple of hours off every week to attend therapy, treatment, or doctors' appointments. It could also be longer and preventative, for example a few days off if the person is becoming unwell.
- Mental health support. Everyone who works for Spill has (perhaps unsurprisingly) access to Spill therapy. Offering access to workplace counselling and corporate therapy lets employees get professional support when they need it.
- Support with managing workload. This is hopefully something that all employees already get, but it might be necessary to provide extra support when someone has a mental health condition. It might mean more frequent one-to-ones with their manager, or a temporarily reduced workload during times when their mental health condition becomes worse.
- Flexible hours. Someone with a mental health condition might find it difficult to use public transport during rush hour, or might be drowsy in the mornings due to medication. Agreeing on different working hours to other employees, or agreeing on a degree of flexibility based on how they're doing, can help.
- Methods of working. Perhaps a different piece of equipment, like ear plugs, or workplace, like an empty meeting room, might help. Or perhaps allowing the person to work differently, for example working on paper instead of on a computer at times, could be tried.
As an employer, you should ask the employee what kind of reasonable adjustments might work for them, and run any suggestions by them before implementing anything. A reasonable adjustment that's right for one person with bipolar disorder might not be helpful to another person with bipolar disorder.
Keep in mind that someone struggling with their mental health might not know what adjustments will help them or feel ready to ask for them. Other people may have a clear idea of what they need, while some may have suggestions from their GP.
After you’ve agreed on what reasonable adjustments for mental health you can make, be sure to confirm them in writing with your employee. And remember, reasonable adjustments aren't set in stone: if they stop working for either party, the case can be made to change them.
How to prevent mental health discrimination at work
Here at Spill, we have a mental health discrimination at work policy. In this policy, we set out clear standards throughout the three stages of an employee lifecycle to minimise the chance of mental health discrimination from happening.
It’s a really important document and one that we think is worth sharing. So, without further ado, here’s how Spill prevents mental health discrimination at work 👇
Preventing discrimination during hiring
When attracting, assessing, and interviewing candidates for a role, the key legal requirement to bear in mind is to avoid any potential discrimination towards someone with a mental health condition that meets the protected characteristics of a disability.
It's illegal to ask a candidate about the state of their mental health at any time before a job offer is made (without good reason), such as during early correspondence with them or at any time in the interview process.
There are some exceptions to this law, however. As an employer, you can ask a candidate whether they have a disability (mental or physical) in order to:
- Find out whether the applicant will be able to take an assessment for the job
- Find out whether the applicant will need reasonable adjustments to the application process
- Find out whether the applicant will be able to do tasks that are central to the job (though you as the employer should also consider the reasonable adjustments that you might need)
- Find out if you as the employer are receiving job applications from a diverse range of people
If a candidate has a mental health condition that classifies as a disability, consider making reasonable adjustments for mental health to the application process:
- Give them the option to do a take-home exercise instead of a live exercise
- Give them the option to do a phone call or video call instead of an in-person interview
- Give them extra time to complete a work task or take-home exercise
What's okay to ask an applicant, and what isn't:
✅ "Please contact us if you have a disability and need any adjustments to be made to the application or interview process"
❌ "Do you have a history of poor mental health?"
Preventing discrimination during onboarding and employment
The key legal requirement for someone who is (or is about to start) working at your company is to figure out any reasonable work adjustments that need to be made for them.
Employers have a legal responsibility to provide relevant reasonable adjustments for mental health for any employee with a mental health condition that classifies as a disability.
We’ve covered reasonable adjustments for mental health in more detail earlier on in the article, so if you skipped it, be sure to scroll back up to read it again: it’s important!
Reasonable adjustments might include (and not include):
✅ Working 11am-8pm instead of 9am-6pm, to avoid the rush hour commute
❌ Not using a phone for a job in customer service (unless a message-only role is available)
Preventing discrimination during poor employee performance or dismissal
There are a few requirements to bear in mind here, and they all relate to what is and what isn't legal when it comes to the dismissal of an employee with a mental health condition that classifies as a disability.
Dismissing an employee with a mental health condition that classifies as a disability is illegal unless you as the employer have followed certain procedures to try and keep that person in employment first.
In short, the law states that someone can be dismissed if (a) they've been absent from work many times and (b) they aren't capable of doing their job anymore.
As the employer, you need to follow certain procedures before a dismissal can be legal:
- Investigate their mental health condition. Get an occupational health professional to write a report, request to see medical records, ask for a GP's recommendation.
- Consult the person. Ask them about their condition and how it affects them and their ability to do the job; ask them how you can help and what would help them to keep working.
- Make reasonable adjustments. As we’ve already discussed, you need to try and keep them in the role by changing things like their hours, support, or ways of working.
- Explore different options with them. Is there another role they could move to that would be more suitable? Could you reduce their contracted hours (and pay)?
- If they're off work, keep the role open for them as long as reasonably possible. Here, 'reasonably' means as long as you can without undue detriment to the business.
When handling the poor performance or the potential exit of an employee with a mental health condition:
✅ Follow the proper procedure before any dismissal or formal warning takes place
❌ Take action without consulting the employee first, and exploring different options with them
Further resources for mental health discrimination at work
It’s important to mention here that we’re not a legal company. To find out more information or to get advice on rights and requirements when it comes to mental health discrimination at work, we recommend the following:
- The UK’s leading mental health charity, Mind offers free advice and support to anyone experiencing a mental health challenge
- Read their information about disability discrimination and discrimination at work
- A mental health charity that provides support, information, and advocacy services for people with mental health conditions
- Read their information about discrimination and mental health
Advisory, Conciliation and Arbitration Service (ACAS)
- Provides free and impartial advice to employers about workplace relations and employment law
- Read their information about disability discrimination at work
- Offers free information and advice to assist people with the law, debt, consumer, housing, and other problems in the UK
- Read their information about dealing with discrimination at work
Download our mental health at work discrimination policy template
Prevent mental health discrimination in your company by using this template to build your own mental health discrimination policy
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