What To Do If You Suspect Mental Health Discrimination at Work

Nell Hendy

August 16, 2022

8 min read

Although amazing progress has been made in recognising mental health issues as medical conditions, there is still a lot more that needs to be done. Mental health discrimination is not yet a thing of the past and too many people continue to encounter unfair treatment because of it.

In the workplace, people can be directly or indirectly discriminated against due to their mental health. This can include unfavourable treatment and exclusion from opportunities. In this article we will help you to understand what mental health discrimination is and what to do if you suspect it in your workplace, as well as outlining your rights.

What is Mental Health Discrimination?

Mental health refers to our state of wellbeing and is different for everyone. It can fluctuate over time and includes lots of different types, such as anxiety, depression and eating disorders.

In some circumstances people are treated less favourably than others, or put at a disadvantage, because they have a mental health condition. This is called mental health discrimination.

The Equality Act 2010 is in place to prevent discrimination, including mental health discrimination, and to remove the barriers that prevent equal access to work and opportunities. The Act has nine protected characteristics that cannot be discriminated against, including age, disability and gender. Under the Act, Mental health is classed as a disability and therefore is a protected characteristic.

Discrimination against someone because of their mental illness is breaking the law. In the workplace, employers are required to make reasonable adjustments to accommodate the needs of any disabilities. This can include making changes to policies, working practices, physical layouts, or providing extra equipment or support. If you have a mental illness, you have the right to ask for changes in your workplace to meet your needs.

Some reasonable workplace adjustments for mental health issues include:

Taking a flexible approach to working hours or using flexitime (a system of working a set number of hours with the starting and finishing times chosen within agreed limits by the employee).
Gradual return to work periods for those who have been off due to sickness.
Providing the option of working from home.
Offering part-time positions and job shares where practical.
Allowing someone time off to attend appointments and letting them make up the time at another point.
Allowing someone with anxiety to have their own desk in the office instead of hot-desking.
Providing increased supervision or support.
Offering training opportunities, recreation and refreshment facilities.

Examples of Mental Health Discrimination at Work

There are a few different types of discrimination, including:

Direct discrimination

This is prejudicial treatment because of a protected characteristic, for instance; being denied an opportunity because of your mental health. In some circumstances, failure to make reasonable adjustments can also be a form discrimination.

For example, Serena has anxiety and asks her employer if she can apply for a new post within the company doing work she feels she is more able to do. Her employer says she isn’t suitable for the role due to her mental health.

Indirect discrimination

This happens when rules that apply to everyone inadvertently disadvantage you; in other words, they put you at a disadvantage because of your mental health. However, with this type of discrimination if some rules and arrangements are “justifiable”, they could be judged as lawful.

For example, Mohammed’s employer decides that all staff must start a new shift pattern, which involves working late in the evening. No staff can opt out. But Mohammed takes medication for schizophrenia which makes him feel very sleepy in the evenings, so he isn’t able to work late shifts.

This is likely to be indirect discrimination as it puts Mohammed at a disadvantage. But it will not be discrimination if his employer is able to justify the arrangement by showing that it is for a good reason, appropriate and necessary.

Harassment

This is when someone is persecuted because of a protected characteristic. Harassment is defined as conduct that violates dignity or produces an unpleasant environment. For example, when an employer knowingly makes offensive comments about mental health within your earshot.

For example, Stanley has an eating disorder. Stanley’s manager knows he has an eating disorder and she makes offensive remarks in the office about how people with anorexia should just eat more food. She then jokes about wishing she was anorexic like Stanley so she could lose weight. This is harassment.

Victimisation

This is the mistreatment of a person as a result of them making a complaint about discrimination or harassment.

For example, Jibin’s colleague has bipolar disorder. Jibin supports her colleague to complain to their employer about disability discrimination. After this, Jibin’s manager refuses her promotion on the basis that her loyalty to the company is in question.

Discrimination by association

Workplace discrimination against someone because of their relationship with a protected individual is known as ‘discrimination by association’.

In the ‘Coleman v Attridge Law’ case in 2008, a mother successfully claimed suit for associated discrimination. She had a disabled child and required flexible working hours. However, she was unlawfully dismissed and refused the same flexible hours as parents whose children were not disabled. This was discrimination by association in the workplace.

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How To Challenge Discrimination in the Workplace

There are certain things you can do to challenge mental health discrimination in the workplace. You can raise a complaint informally, or lodge a formal complaint by following your workplace procedure. You can try both of these options to get your employer to put things right. However, if you decide to take action against discrimination, you’ll need to make your claim within three months.

Raising Your Concerns Informally

Broadly speaking, when you are making a claim, your first port of call is to raise your concerns informally with those who are discriminating against you. If that’s not possible or you’re not comfortable doing this, you should speak to your HR department.

When raising your concerns with the person or people discriminating against you, make sure you state clear objective facts as much as you can and avoid criticising them. Criticism tends to put people on the defensive, making them less likely to listen to your concerns, and more likely to be thinking through their defence or denying what you say.

Ensure you let the person you are talking to knows that you are taking the matter seriously and documenting the issues as they arise. This will mean that HR, your colleague, or your boss takes the matter seriously too.

If informal measures don’t work, you should begin a formal route of complaint. If formal measures do not resolve the issue, you are well within your rights to take the issue to an employment tribunal. But a tribunal should always be the last resort.

Making a Formal Complaint

If an informal conversation doesn’t provide a resolution, you can lodge a formal complaint by following your company’s grievance procedures, which may involve a mediation process. You should have access to your company handbook, which should tell you all you need to know about your company’s grievance procedure.

When you lodge a complaint, you should write to your employer setting out the details of your grievance and you should ask to schedule a formal meeting to discuss the issue.

You have the right to be accompanied when you lodge a formal grievance, this could be by a co-worker or trade union representative. Depending on your company’s grievance procedure, you may also have the right to be accompanied by a family member or a worker from the Citizens Advice Bureau.

Citizens Advice is a good organisation to go to for impartial advice, and it is a good idea to keep a written record of everything discussed. If you have a trade union representative, you should talk to them about moving forward and making a formal complaint. You may also be able to report your employer to the Equality and Human Rights Commission.

Before you raise your concerns, gather the facts. You need to show that you have been subject to one or more types of discrimination. It’s a good idea to note down some examples and review any policies that your workplace has on discrimination.

You should also get a note from your GP and have a think about the outcome you want: an end to the discrimination, an apology, compensation, or a change to workplace policy? You’ll also need to show that those without a mental health issue, have not been subjected to the same treatment.

Be as detailed as possible: it will strengthen your case if you can provide witnesses and give exact dates, times, and circumstances. Retain physical evidence, such as emails or memos and try keeping a diary to record incidents as soon as possible after they happen. This will help you to raise all the incidents that have happened, and if it comes to a tribunal, it will help your lawyer.

Mental health discrimination is unacceptable and happens all too frequently in the workplace. This includes unfavourable treatment and exclusion from opportunities due to a mental health issue. If you witness or experience mental health discrimination in the workplace, you have a right to raise your concerns and challenge your employer so they can make things right.