Disability and Mental Health in the Workplace

A complex area

In discrimination law, a disability is quite widely defined. A disability is “a physical or mental condition which has a long-term and substantial effect on someone’s day to day life”. In order to consider whether an employee is disabled, the individual’s personal circumstances must be considered.

A disability could be a physical condition or illness, but it could also be a mental health condition, such as depression, or an “invisible” disability such as a learning disability. Some conditions are automatically treated as a disability by the law, such as cancer or diabetes.

Mental Health in the Workplace Policy

A comprehensive mental health in the workplace policy is essential for promoting the well-being of employees and fostering a supportive and productive work environment. Such a policy outlines the organisation’s commitment to mental health, detailing the resources and support available to employees experiencing mental health issues. It includes provisions for raising awareness, reducing stigma, and encouraging open dialogue about mental health. Additionally, the policy should specify procedures for accessing mental health services, training for managers to recognise and respond to mental health concerns, and guidelines for making reasonable adjustments to accommodate employees’ needs. By implementing a robust mental health policy, employers can enhance employee morale, reduce absenteeism, and improve overall workplace performance.

Is Depression a Disability?

Depression can indeed be considered a disability under the Equality Act 2010 in the UK if it has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. This means that if a person’s depression is severe enough to impact their everyday functioning and lasts or is expected to last for at least 12 months, it qualifies as a disability. Employers are required to make reasonable adjustments to support employees with depression, such as flexible working arrangements, changes in duties, or providing access to counselling services. Recognising depression as a disability ensures that individuals receive the necessary support and protection against discrimination in the workplace.

Employees (or job applicants and prospective employees) must not be treated differently, unfairly or less favourably because of their disability. The law provides protection from:

Direct discrimination (being treated less favourably because of their disability).
Indirect discrimination (being at a disadvantage because of a seemingly neutral provision, criterion or practice (PCP)). This could include, for example, the requirement that all employees must have driving licence. Whilst this is on the face of it neutral, it is likely to discriminate against those who are visually impaired. When a driving licence is not necessary for the role, this requirement would be indirectly discriminatory.
Victimisation (being subjected to a detriment because of a complaint about discrimination or assisting a victim of discrimination i.e. by being a witness for them or a ‘companion’ at meetings).
Harassment, including sexual harassment (being subjected to unwanted conduct related to their disability, which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment).

Employers have a duty to make reasonable adjustments to the workplace or an individual’s duties or working regime if an individual would be placed at a disadvantage because of their disability. Obvious examples of this are making physical adjustments to the workplace, but the duty could also include making reasonable changes to shift patterns, hours or even amendments to the organisation’s sickness policy, or allowing the employee to take more breaks throughout the day. It depends entirely on the disability and the needs of the individual.

Under the Equality Act 2010 a disability could be a physical condition or illness, but it could also be an “invisible” mental health condition, such as depression or anxiety. A formal medical diagnosis is not required and providing the condition has a more than “minor or trivial” impact on the individual’s day to day activities disability may be made out.

Some conditions (such as cancer and multiple sclerosis) are automatically treated as a disabilities under the Equality Act 2010, whilst others are excluded from the definition of disability, such as hay fever and a tendency to set fires.

Is Depression a Disability?

Depression may be a disability under the Equality Act 2010 if it has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities. This means that if a person’s depression is severe enough to impact their everyday functioning and lasts or is expected to last for at least 12 months, it likely qualifies as a disability. Employers are required to make reasonable adjustments to support employees with disabilities, and adjustments might include flexible working arrangements or changes in duties.

What is Disability Discrimination?

Employees (or job applicants and prospective employees) must not be treated differently, unfairly or less favourably because of a disability. The law provides protection from:

Direct discrimination (being treated less favourably because of a disability).
Indirect discrimination (being at a disadvantage because of a seemingly neutral provision, criterion or practice). This could include, for example, not allowing employees to work from home. Whilst on the face of it, this is neutral requirement and it applies to all staff, it could put those with an anxiety disorder at a disadvantage as they may struggle to attend the office. Unless the employer can justify the requirement to be office based, an indirect discrimination claim may succeed.
Discrimination for a reason arising from a disability (being treated unfavourably for a reason related to a disability). This right is wide in scope and can apply to, for instance sickness absence procedures which are triggered once a certain level of absence is recorded. Failing to make special allowances for disability related absences could be discriminatory.
Duty to make reasonable adjustments (an employer must make reasonable changes to the workplace or an individual’s duties or working regime to mitigate or remove disadvantages caused by a disability). This covers physical adjustments to the workplace, as well as changes to shift patterns, hours or even amendments to the organisation’s sickness policy.

Employers facing the above claims may find some comfort in the fact that some kinds of discrimination can be “justified”. Employers who are able to overcome the admittedly high hurdle of establishing that they have a justification (they must show their actions were a proportionate means of achieving a legitimate aim) may successfully defend claims of indirect discrimination and discrimination for a reason arising from a disability.

However, some forms of discrimination can never be justified for example direct discrimination (refusing to recruit a disabled candidate because they are disabled), and are always unlawful.

It is also unlawful to subject someone to harassment related to disability, or to victimise them because they have made or intend to make a disability discrimination complaint. For more information on the forms of discrimination, please visit our Inclusion and Diversity section.

Employment Law Contact

Adele Martins, Partner and Head of Employment

T: 020 7317 6719

E: [email protected]

A disability could be a physical condition or illness, but it could also be a mental health condition, such as depression, or an “invisible” disability such as a learning disability. Some conditions are automatically treated as a disability by the law, such as cancer or diabetes.

Mental Health in the Workplace Policy

Is Depression a Disability?

Employees (or job applicants and prospective employees) must not be treated differently, unfairly or less favourably because of their disability. The law provides protection from:

Direct discrimination (being treated less favourably because of their disability).

Victimisation (being subjected to a detriment because of a complaint about discrimination or assisting a victim of discrimination i.e. by being a witness for them or a ‘companion’ at meetings).

Harassment, including sexual harassment (being subjected to unwanted conduct related to their disability, which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment).

Some conditions (such as cancer and multiple sclerosis) are automatically treated as a disabilities under the Equality Act 2010, whilst others are excluded from the definition of disability, such as hay fever and a tendency to set fires.

Is Depression a Disability?

What is Disability Discrimination?

Employees (or job applicants and prospective employees) must not be treated differently, unfairly or less favourably because of a disability. The law provides protection from:

Direct discrimination (being treated less favourably because of a disability).

However, some forms of discrimination can never be justified for example direct discrimination (refusing to recruit a disabled candidate because they are disabled), and are always unlawful.

It is also unlawful to subject someone to harassment related to disability, or to victimise them because they have made or intend to make a disability discrimination complaint. For more information on the forms of discrimination, please visit our Inclusion and Diversity section.