Mental health and discrimination at work

According to Ruby Wax, (entertainer and mental health campaigner): If you become mentally ill, don’t – whatever you do – tell your boss (1). I know what she means but we need to take a closer look at what the Law says about discrimination at work. I am basing this post on what I have learned from offering therapy to people whose problems centre around work and also on some findings from research on the topic.

If you consider yourself to have a ‘mental health problem’, when can you accuse your employer of discrimination for not taking this into account? The Equality Act (2010) was designed to cover discrimination against a person for all kinds of reason, including having a disability. You might be surprised to learn how the Act defines a disability resulting from a ‘mental impairment’. The ‘impairment’ and the effect it has on normal daily activities must be present for a year or more. So if your ‘mental health’ has suffered from, say, a sudden bereavement or bullying colleagues, you must demonstrate three things: 1. the impairment is expected to last at least a year (unlikely for many kinds of stress) 2. the mental impairment must be labelled as such by a professional (i.e. getting a GP or a psychiatrist to stamp your official record with a stigmatised diagnosis) 3. Have an impairment that is not excluded from the Act. The excluded categories are chiefly the less desirable forms of ‘mental impairment’ such as an addiction to alcohol or nicotine, being a fire-setter, voyeur or exhibitionist, or having a tendency to abuse others sexually or physically. If you satisfy all three conditions, your employer is obliged to make reasonable adjustments to your working conditions. The charity MIND gives some examples of allowances made on grounds of ‘mental health’ (2).

I have not yet encountered a client who is aware of the Act or made use of it. ‘Mental health’ problems at work seem to invite one of two responses from an employer. The first is sympathetic, accommodating, and informal. This often depends on whether a manager has experienced something similar themselves. It helps if an employee’s skills are of particular value to the company. An employee might be able to use their health insurance policy (sometimes a company perk) to access therapy. If work becomes too stressful and affects ‘mental health’, the person may attempt to move departments, take unpaid leave, use up a holiday allowance instead of ‘going sick’, apply to work part-time, ask to spend more days working from home, or simply seek out a new employer. In other words, there is an attempt on both sides to accommodate to a difficult situation and smooth it over.

The second kind of response from an employer and employee is formal and legalistic, involving grievance procedures, Human Resources department, and Occupational Health. The people I see as clients (mostly in skilled jobs) are not inclined to view their ‘mental health problem’ as an enduring impediment to working normally and certainly do not wish to have a psychiatric label entered on their staff record. This is not because they shun the stigma of mental ill-health but because it is very likely, in practice, to harm their future career prospects. To be labelled (e.g. as a ‘depressive’) risks providing a spurious reason for future dismissal or is a handicap when being considered for promotion. A significant proportion of time in therapy is therefore spent discussing strategy and impression management, bearing in mind a client’s ultimate objectives. People are reluctant to pursue a grievance when they feel that they are being discriminated against unless they already have plans in place to change their job.

Research findings back up my own impressions. The Department of Work and Pensions has funded research into the impact of ‘mental health’ on employment. They are concerned because ‘mental ill health’ is given as the main reason for people being unable to work due to sickness (2). As in many areas of social life, the medicalisation of problems that have understandable causes and require pragmatic remedies gets in the way of devising sensible policies. As Irvine (3) states: What emerged from my studies was that some people did not talk about difficulties at work because they did not consider themselves to have a mental health problem at all. Rather they saw what they were experiencing as a perhaps intense but nevertheless ‘normal’ level of stress or emotional distress. There were also people who had talked to others in their workplace about difficulties of one type or another that they were experiencing in their home or work lives, but they did not express these in medicalised language, hence again did not disclose a ‘mental health condition’ as such. 

Consistent with my own experience, only a minority of Irvine’s respondents were aware of the Disability Discrimination Act (DDA, 2005): Very few felt that knowledge of the DDA would have made a difference to their employment outcomes . . . seeing any difficulties in carrying out their role as their own responsibility and not something their employer should be expected to accommodate. . . . people did not perceive their mental health issues as a ‘disability’ or even see themselves as being ‘ill’ in some cases. Irvine notes that this raises questions about the salience and applicability of disability employment legislation in the context of common mental health problems (3). 

Yet another example of the obfuscation caused by the mental health conspiracy.

1. Wax, R. (2015) Should you tell your boss about mental illness?

2. MIND (2014) We’ve got work to do.

3. Irvine, A. L.  (2015) Mental health and employment: Context, concepts and complexity. University of York Social Policy and Social Work. 


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