Alex Donaldson of our Employment & HR team brings you a three part blog series focussing on mental health awareness week 2022. This blog two of three.

The Herculean effort required even to get out of bed in the morning for a person suffering from clinical depression, to abject terror that someone who suffers from anxiety might feel in a confrontational situation, it is clear that mental health conditions can impact on a person’s daily tasks and day-to-day activities. Many of us will have lived with a mental health condition, or witnessed a loved one struggle through mental health problems.

According to an Office of National Statistics survey in October 2021, approximately 16% of adults showed signs of moderate to severe depressive symptoms. This accounts for around 8.8 million people in the UK who suffer from depression.

The Law

Mental Health and the associated struggles with mental health has become more widely recognised not only socially, but legally too. The primary protections against unfavourable treatment on the grounds of ill mental health can be found in Section 6 of the Equality Act 2010:

6 – Disability

• A person (P) has a disability if—
• P has a physical or mental impairment, and
• The impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

This replaced the previous piece of statute on this matter, the Disability Discrimination Act 1995, which defined mental impairment as “resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness”. With the implementation of the 2010 Act, the reasoning behind what constitutes a mental impairment relies more on the facts of the case than clinical recognition.

The law has developed around understanding the nuance of mental health in the remit of disability discrimination. As case law has continued to develop, certain mental health conditions have fallen under the remit of “mental impairment” for the purposes of the 2010 Act.

The above definition of disability was helpful supplemented by the adjoining Schedule 1. The contents of this Schedule 1 contains four essential questions, which when posed, helps a tribunal to ascertain whether the impairment constitutes disability. They are:

• Does the person have a physical or mental impairment?
• Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
• Is that effect substantial?
• Is that effect long-term?

Establishing Mental Impairment

In J v DLA Piper UK LLP [2010], the Claimant submitted that she had been subjected to detrimental treatment in not being hired, by reason of disclosing her history of depression. Her depression was such that she had been certified unfit for work for a period of time. The Claimant maintained that when the detail of this depression was outlined to the recruiting organisation, her application discarded.

The Employment Appeal Tribunal found:

• It was not a question of law to identify the nature of an impairment, as this was a query which would only be answered by medical science. If it found that the claimant's ability to carry out day-to-day tasks had been adversely affected on a long-term basis, then it followed that in most cases the claimant was suffering from an impairment, and the Tribunal could dispense of attempting to resolve difficult medical issues. Therefore the case held that the Schedule 1 questions of the Equality Act, did not have to be answered in sequence.
• However, in Khorochilova v Euro Rep Ltd [2019], the EAT also held that the Tribunal was able to follow the four questions in sequence – so long as they addressed all questions in their evaluation of the claim.
• The Claimant had been unequivocally diagnosed as suffering from moderate depression and had been unfit for work for four months. There was nothing to suggest that that was not a true clinical depression.
• The first instance Tribunal had disregarded the evidence of the Claimant’s general practitioner. While less influential than the opinion of a specialist, a GP should still have been seen by the Court to have enough competence to give expert evidence on the matter of their patient.
• The quality of expert medical evidence is often important in establishing the existence of, and identifying, a mental impairment. However, it is important that the tribunal analyses the effect of the employee's condition rather than focussing on a medical diagnosis.

The EAT were careful to note that feelings of despondency, demotivation and anxiety that did not arise out of of clinical depression but simply as a reaction to problems at work should not be afforded protection under the Act. Such problems were seen as a ‘medicalisation of work problems’ and not symptoms of depression. However, J v DLA Piper outlines that the mental condition of depression does constitute a disability which can be protected under the Equality Act 2010

Outcome and Future

In the eyes of the law, clinical depression can be protected as a disability. This affords certain protections and prohibits unfavourable treatment, such as dismissal on the grounds of disability. However, those who suffer from non-clinical mental health issues may not be protected by law. Many will have felt that work pressures have given them feelings of anxiety and stress. As these are not protected as disabilities, it is important that in a more informal sense employers and colleagues are taking steps to ensure that those with less severe impairments still have channels of communication for assistance. As noted in the previous post in this series on “loneliness”, a lack of communication and an unmonitored feeling of isolation may be a damaging cocktail for the mental health of many employees.

Case law has continued to develop and under the wide scope of Section 6 and Schedule 1 of the Equality Act 2010, further mental impairments have been identified as capable of protection:

• Anxiety & Depression
• Depression
• Panic attacks
• Eating disorders
• Bipolar affective disorders
• Obsessive compulsive disorders
• Personality disorders
• Post-traumatic stress disorder

The Equality Act 2010 continues to cater for those who struggle with severe mental impairments, some of which being mental health problems. As society continues to try and understand the struggles around mental health more, we await further updates on the steps that legislators and judges will make to afford legal protections to some of the people in society who suffer in silence.

If you would like to contact our Employment & HR team about anything discussed in this blog, you can reach them on 01228 552222 and hello@burnetts.co.uk

If you would like to catch up on the first instalment in our three part blog series for mental health awareness week, click here.