Mental Health Issues & The Equality Act
The UK has the had legislation protecting workers against disability discrimination for almost 20 years but there is still a lot of ignorance and confusion about who counts as being disabled. Whilst the stereotypical “disabled person” is someone in a wheelchair whose status is obvious and for whom employers will easily accept they have responsibilities, perhaps for that reason the majority of our disability discrimination clients have mental rather than physical health problems.
The requirement under the legislation for a mental health impairment to be “clinically well recognised” was removed in 2005 and since then it has become less important to have a precise, expert, diagnosis. Indeed the Equality Act Guidance states that there is no need for a claimant to establish a medically diagnosed cause for their impairment. It is the effect of an impairment that must be considered and not its cause.
We recently successfully represented two clients with mental health problems in disability discrimination claims. One had long standing depression which the employer accepted meant that she was a disabled person for the purposes of the Equality Act. What they failed to do was make an appropriate adjustment to their redeployment procedure to accommodate the disadvantage she suffered when they relocated her.
Our other client had been diagnosed with dyslexia and ADHD as a child but it did not occur to her that she was disabled. It was only when we talked it through with her that she understood that the Equality Act applied to her and that her dismissal and treatment was disability discrimination. Despite seeing diagnoses from her youth, her employer refused to accept that she was disabled and we were forced to obtain an expert report. Fortunately, we persuaded the Employment Tribunal to fund this report as it cost over £1,000. The expert advised that the ADHD did count as a disability but the dyslexia did not. In fact he attributed some of our client’s problems with reading to ADHD. On the strength of the report the employer conceded that our client was a disabled person. She was successful with several claims of direct discrimination, discrimination arising from disability and failures to make reasonable adjustments.
Workers and employers really need to be aware of what counts as a disability under the Equality Act so that they can enforce their rights and fulfil their obligations.