Your responsibilities as an employer: Staff with mental health conditions

Mental health matters. If you employ 10 people or more, odds are that at least one member of your workforce has a mental health problem, such as anxiety, depression or bipolar disorder.

In fact, more people in England suffer with mental ill health than diabetes (9.1% versus 7.6%) making it almost as prevalent as asthma, according to NHS England's 2018 GP Patient Survey.

The same survey found that those with mental health problems are far less likely to feel confident in dealing with issues arising from their condition than people living with heart disease or cancer. The same group is also less likely to say they receive enough support from healthcare providers.

Remember those odds: one in 10 of your staff is likely to have a mental illness.

Most employers know about their responsibilities to staff with back pain, migraines or mobility issues but what about 'invisible' disabilities such as mental illness? How do you protect that one in 10?

Mental health: Employers' responsibilities explained

The first thing to make clear is this: under the Equality Act 2010, all employers have a legal duty to protect their staff from discrimination on grounds relating to gender, age and disability.

If a mental health problem has a substantial, adverse and long-term effect on day to day activities, it can be classified as a disability [Time to Change]. Sufferers don't require a specific diagnosis and the condition needs to have lasted, or be expected to last, for more than a year.

This means you, the employer, need to be mindful of mental health in the workplace and take reasonable steps to protect staff.

What are reasonable steps to safeguard employees' mental health?

Anyone deemed 'disabled', including those with mental health problems, is entitled to ask for adjustments to be made to their working arrangements, so long as they're reasonable.

To qualify as reasonable, an employer needs to have the resources required to make an adjustment and doing so can't be excessively disruptive to the role or other workers. The benefits to employee and employer should 'far outweigh' the cost, says the charity Rethink Mental Illness.

So, let's say a call centre worker has asked to be excused from taking calls because they've developed a phobia of phones. The employer could argue this was an unreasonable adjustment as they had no roles without phone duties and changing the role would disrupt the business.

Now, imagine said telephonophobe worked as a shop assistant. Answering the phone is not central to the role and there are enough staff to ensure no calls go unanswered, so disruption would be minimal. The request is reasonable. Refusal could open the employer up to claims of discrimination.

Different types of disability discrimination

In the above example, the shopkeeper could be accused of indirect discrimination, because they are not fulfilling their duty to make reasonable adjustments to the assistant's working arrangements. This is one of several types of disability discrimination listed in the Equality Act 2010.

Examples of direct discrimination include making negative comments about a mental health condition in a past employee's reference or not allowing staff to apply for certain roles because of known mental health problems.

Harassment could take the form of openly making negative comments about a mental health condition you know a team member has. Victimisation could be refusing that worker a promotion because of said condition.

Discrimination by association might include treating a worker differently because they look after a relative with a mental illness. If a staff member is disciplined for absences due to a mental illness - say, depression - this could qualify as discrimination arising from disability.

What if you don't know about your staff's mental illness?

But what if you didn't know? Asking about a candidate's mental health in the recruitment process is unlawful, save for a few exceptions such as for national security reasons or to determine if a candidate is able to take an assessment for the job role.

For example, an airline would be within its rights to ask flight crew applicants if they had a fear of flying in an application form. Similarly, employers can ask applicants to contact them if they need adjustments to the interview process because of a disability.

You can ask about an employee's health once you have offered them a job. If this gives concern about their mental health affecting their ability to do their job, seek advice from their doctor of from occupational health professionals. Dismissal, clearly, would qualify as direct discrimination.

Ignorance, unusually, may be a defence. In the example of the depressed worker above, the employer's disciplinary actions wouldn't be discriminatory if they could prove they didn't or couldn't have reasonably known about the depression (of if the action was appropriate and necessary).

It's a big 'if'. Arguably, reasonable (there's that word again) employers would ask staff why they've been absent before resorting to disciplinary procedures, making it unlikely that they'd be in the dark about the depression.

This makes it clear: above all else, employers need to be reasonable when it comes to mental health.