SeeMe is an organisation whose aim is to tackle mental health stigma and discrimination. The organisation has this week reported that nearly half of Scottish workers do not tell their employers about mental health problems for fear of losing their job. It is also reported that a survey of over 1,000 Scottish workers found that 55% thought that people would be unlikely to disclose a mental illness as it could result in being passed over for promotion or moved to another post.
These figures highlight what would appear to be a very significant issue over workers in Scotland feeling able to be open and upfront with their employers regarding mental health issues.
It is very important for employers to recognise that many individuals who suffer from a psychiatric or mental illness, such as depression, will have a disability for the purposes of the Equality Act 2010. This triggers certain rights for the individual, and obligations on the employer.
One of those obligations is the duty to make reasonable adjustments. For example, employees who suffer from depression will often have periods of absence from work or have difficulty concentrating which could be as a result of medication. Where an employee is absent from work or is not performing well employers will normally invoke formal procedures, such as disciplinary, performance or absence management. These can result in formal warnings being issued and eventually the employee being dismissed.
However, where an employee suffers from a mental illness which amounts to a disability, and where that is the reason for the absence or performance issue, applying the normal procedure without any adjustment could amount to a breach of the duty to make reasonable adjustments and therefore disability discrimination.
An employee in such circumstances could potentially raise a claim on other grounds, such as indirect discrimination. This means that an employer has a policy which, although it is applied to all employees equally, places disabled employees at a particular disadvantage. If the employer cannot show that having such a policy is a proportionate means of achieving a legitimate aim, then that will also be unlawful discrimination.
The above are just examples of the types of situation which can arise, and the types of claim that can be raised. This is a complex area, and it is essential that employers are fully aware of their legal obligations before taking any steps or action in respect of an employee with a mental illness which could potentially amount to unlawful disability discrimination.
Ultimately, the aim for employers should be to provide a supportive environment for all employees, and particularly those who suffer from mental health problems so that those employees feel that they are able to speak openly and frankly with their employer and not suffer any unfavourable or detrimental treatment as a result.
This topic was discussed on the Kaye Adams show on Radio Scotland, and here is a link to the discussion which involved Giles Woolfson of McGrade & Co and also a representative of SeeMe: (scroll to 1 hour 43 minutes)
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24 April 2023
Giles Woolfson
