Mental health in the workplace: when does it become a disability?

Mental health in the workplace

Author: Selin Olken

Mental health issues are becoming increasingly common in UK workplaces, yet there is often uncertainty about when a mental health condition is protected under the Equality Act 2010 and what responsibilities employers owe in those circumstances.

Not every mental health condition is a disability in law. Equally, a condition does not need to be visible or permanent before legal protection applies. The answer depends on the effect the condition has on the individual rather than the medical diagnosis itself.

Understanding where the legal threshold lies is important for both employers and employees, particularly where sickness absence, workplace adjustments or disciplinary action are involved.

When does a mental health condition become a disability?

Under the Equality Act 2010, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In practice, this means asking three questions:

• Does the condition have more than a minor or trivial effect on everyday activities?

• Has the effect lasted, or is it likely to last, for at least 12 months?

• Does it affect ordinary daily activities such as concentrating, communicating, interacting with others, following routines, remembering information or sleeping?

The focus is on the impact of the condition rather than its name. A diagnosis on its own does not determine whether someone is legally disabled.

Conditions such as obsessive compulsive disorder (OCD), depression, anxiety disorders, bipolar disorder, post-traumatic stress disorder (PTSD) and schizophrenia may all amount to disabilities under the Equality Act 2010 where the statutory criteria are met.

Mental health is not linear. Many conditions fluctuate over time, with periods where symptoms improve followed by periods of relapse or deterioration. A temporary improvement should not be taken to mean that the condition is no longer serious or no longer has a substantial effect on the individual's day-to-day life.

The legal assessment looks at the overall long-term impact of the condition rather than how someone presents on a particular day. A condition may still amount to a disability even where symptoms are not present all the time.

Reasonable adjustments

Where an employee meets the legal definition of disability, employers have a duty to make reasonable adjustments where workplace arrangements place that employee at a substantial disadvantage.

The purpose of an adjustment is to remove or reduce barriers that make it more difficult for a disabled employee to carry out their role.

What is reasonable will depend on the circumstances of each case, but examples may include:

• adjusting working hours;

• agreeing hybrid or home working where appropriate;

• reallocating certain duties;

• providing a quieter working environment;

• allowing additional time to complete particular tasks;

• introducing regular wellbeing meetings or additional supervision;

• agreeing a phased return after sickness absence; or

• modifying attendance procedures where disability-related absences are involved.

Reasonable adjustments should be considered on an individual basis. An adjustment that is appropriate for one employee may not be suitable for another, even where both have the same medical condition.

When does the duty arise?

One of the most common misconceptions is that an employer's obligations only begin once an employee formally declares that they have a disability.

That is not the legal position.

The duty arises where the employer knows, or could reasonably be expected to know, that an employee has a disability and is likely to be placed at a substantial disadvantage.

In practice, employers should not ignore information suggesting that an employee may be experiencing a long-term mental health condition. Medical certificates, repeated discussions about mental health, occupational health reports or obvious difficulties at work may all indicate that further enquiries are appropriate.

Disclosure

Employees are generally not required to disclose a mental health condition during recruitment, and employers are usually prohibited from asking health-related questions before making a job offer, subject to limited exceptions.

Once employment has started, however, disclosure often becomes important.

An employer cannot reasonably be expected to consider adjustments if it has no knowledge, and no reasonable basis for suspecting, that an employee has a disability.

Disclosure does not necessarily require a formal diagnosis or detailed medical records. In many cases, explaining how a condition affects work and discussing the support that may be helpful is enough to begin a conversation about possible adjustments.

Many workplace issues can be resolved more effectively where concerns are raised at an early stage rather than after relationships have broken down.

Where a condition does not amount to a disability

A mental health condition that falls outside the Equality Act definition should not automatically be dismissed as an employment issue.

Employers continue to owe duties in relation to the health, safety and wellbeing of their workforce and should respond appropriately where an employee is experiencing mental health difficulties.

Depending on the circumstances, this may involve maintaining appropriate contact during sickness absence, holding supportive return-to-work meetings, considering temporary adjustments or reviewing workloads where appropriate.

Although these measures may not be legal requirements under the Equality Act, they are often sensible management practices and may help prevent more significant problems from developing.

Mental health absence and reasonable adjustments

Sickness absence and reasonable adjustments are sometimes confused, but they serve different purposes.

Where an employee is medically unfit for work, normal sickness absence procedures and contractual or statutory sick pay arrangements apply.

Reasonable adjustments are different. They are intended to remove workplace barriers created by a disability and are not a substitute for sickness absence.

An employee may therefore have reasonable adjustments in place while also requiring periods of sickness absence if their condition deteriorates. One does not replace the other.

Disability discrimination

Where a mental health condition amounts to a disability, the Equality Act 2010 provides protection against several forms of unlawful treatment.

These include:

• direct disability discrimination;

• discrimination arising from disability;

• failure to make reasonable adjustments;

• disability-related harassment; and

• victimisation.

  
  

Whether discrimination has occurred will depend on the facts of each case. Employers should therefore consider mental health issues carefully before making decisions relating to performance management, attendance, disciplinary action or dismissal.

Practical considerations for employers

Mental health issues rarely follow a standard pattern, and employers should avoid adopting a one-size-fits-all approach.

It is good practice to:

• review requests for workplace adjustments on an individual basis;

• obtain occupational health advice where appropriate;

• train managers to recognise when additional support may be required;

• keep accurate records of discussions and agreed adjustments;

• review adjustments periodically; and

• handle medical information sensitively and confidentially.

What employees should

Employees do not need to use legal terminology or have a formal diagnosis before asking for support.

Where a mental health condition is affecting work, raising concerns at an early stage often allows practical solutions to be explored before problems become more serious.

If an employee believes they have been treated unfairly because of a disability or that reasonable adjustments have been unreasonably refused, they should first raise the matter with their employer. If the issue cannot be resolved internally, ACAS Early Conciliation is generally required before Employment Tribunal proceedings can be started.

Conclusion

Mental health conditions are not automatically treated as disabilities under the Equality Act 2010. Whether legal protection applies depends on the effect the condition has on the individual and the particular facts of each case.

For employers, early engagement, careful assessment, and appropriate workplace support are often the most effective way to reduce legal risk and maintain positive working relationships. For employees, understanding when legal rights arise can help ensure that appropriate support is requested at the right time.

For employees, early communication with an employer can often lead to practical workplace solutions before issues escalate. Where legal rights arise, understanding those rights is an important first step in securing appropriate support and protecting your position.

If you have any questions about mental health in the workplace, reasonable adjustments, or disability discrimination, or require advice on your rights or obligations under the Equality Act 2010, please get in touch with us.

This article is intended as commentary only and does not constitute legal advice.