Discrimination and mental health
This page looks at what to do if someone has treated you unfairly because of your mental illness. It explains the Equality Act 2010 and how it might apply to you when you are at work, applying for jobs or using services. The Equality Act applies in England, Scotland and Wales.
- The Equality Act 2010 protects disabled people from unfair treatment. This includes many people with a mental illness.
- If someone has treated you unfairly because of a mental illness that could be discrimination.
- The Equality Act 2010 explains what a disability is. If you match this definition, you could be protected from discrimination, harassment and victimisation by the Act.
- You may have the right to get your employer to make changes to your job due to your disability. These changes are ‘reasonable adjustments’.
- The Equality Act protects you from discrimination at work. It also protects you when you are applying for jobs.
- The Equality Act also protects you when you use services. This includes when you try to get housing, education or any other services.
- The Equality Act can also protect carers of people with a mental illness.
What is discrimination?
The Equality Act protects certain groups of people from unfair treatment and discrimination. Discrimination is when a person is treated unfairly because the person has a certain characteristic.
The Equality Act protects you from discrimination because of your:
- Sexual orientation
- Pregnancy and maternity
- Gender reassignment
- Religion or belief
- Marriage or civil partnership
These are known as “protected characteristics”. On this page we have focused on ‘disability’ as mental illness may be considered a disability.
Employers and services in England, Wales and Scotland must follow the Equality Act. This means that the Act protects you in areas such as work, education, housing or using NHS services.
It also protects you when you are trying to buy goods or use facilities or services. Services may include:
- petrol stations,
- gyms, and
- estate agents.
What does “disability” mean?
The word “disability” has a wide meaning under the Equality Act. Even if you do not call yourself “disabled” in everyday life, the Act may still protect you.
The Equality Act says you have a disability if you have a:
- physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities
We have explained each term below.
What is a “mental impairment”?
The Equality Act does not define impairment. The guidance to the Equality Act states that the term ‘should be given its ordinary meaning.’ This includes the effects or symptoms of the illness, as well as the diagnosis. Most mental illnesses may be thought of as an impairment based on the effects it has on you.
What does “substantial and long-term” mean?
The word ‘substantial’ means that the effect that your illness has on you must be more than small or minor.
Your illness will be ‘long-term’ if it:
- Has lasted for at least 12 months
- Is likely to last for at least 12 months
- Is likely to last for the rest of your life
What are “normal day-to-day activities”?
This looks at whether your mental illness makes it harder for you to do things that a lot of people do in everyday life.
The Equality Act doesn’t say what is meant by the words ‘normal day-to-day activities’. It could include things like:
- reading and writing,
- having a conversation or using the telephone,
- watching television,
- getting washed and dressed,
- preparing and eating food,
- carrying out household tasks,
- walking and travelling by various forms of transport, and
- taking part in social activities.
Sarah has a mental illness and finds it harder to remember things. She struggles to concentrate, plan ahead or sleep. This means she finds it more difficult to get up in the morning, plan her journey to work and go shopping. These are just some examples of things that could be normal day-to-day activities.
I am getting treatment that stops my symptoms affecting my day-to-day life. Do I still have a disability?
You might take medication or have therapy to help your condition. If you would struggle to carry out day-to-day activities without this medication or therapy then you can still be defined as disabled under the Act.
Terry has depression and is getting counselling and takes medication. This controls his symptoms and helps him sleep. Without this treatment, he would not be able to sleep, which would stop him doing many day-to-day things. So the Equality Act may still protect him.
What if my illness comes and goes?
Your mental illness might have a substantial adverse effect on your ability to carry out normal day-to-day activities. But your condition might come and go. The Equality Act says you still have a disability if your condition gets better, but is likely to come back.
Mo recovered from depression three months ago. He has had depression many times before. He now has no symptoms, and he would like to return to work. His psychiatrist tells him that evidence suggests he may have another episode of depression in the next three years. The Equality Act may protect Mo as a disabled person because his symptoms could return in the future.
What if I have a short-term illness?
Your doctor may think your illness will only last a short time. In this case the Equality Act’s definition of disability may not cover you.
Someone may have directly discriminated against you because they thought you were disabled. This is known as ‘discrimination by perception’ and you may be protected by the Equality Act. We have explained the different types of discrimination below.
What is not a disability in the Equality Act?
Regulations state that these conditions are not disabilities:
- alcohol, nicotine or any other substance addiction. This does not include addiction caused by medical treatment, such as addictive
- drugs prescribed by a doctor,
- starting fires,
- physically or sexually abusing other people,
- exposing private parts of your body in public, known as exhibitionism,
- watching people who are carrying out intimate acts, known as voyeurism,
- hayfever, and
- a disfigurement caused by tattoo or piercing.
The way your workplace is set up may make it harder for you to work than people without your mental health condition. This could also be true of a service you use.
If this is because of your disability, the service or employer may have to make reasonable adjustments. This is when a service or employer makes changes to a service or job to make things easier for you.
The Equality Act says that a reasonable adjustment can include:
- changing policies or procedures,
- changing a physical feature of the workplace or service, or
- giving you aids such as extra support or equipment.
In all cases the reasonable adjustment must reduce the disadvantage that you have compared to people without a disability.
However, there is no list of what are reasonable adjustments and what are not. What is reasonable for one organisation to offer may not be reasonable for another.
When deciding whether a change is reasonable, an organisation can look at:
- the cost of making the change,
- how much money the organisation has,
- how helpful the adjustment would be to you, and
- how practical it is to make the change.
Your employer or the service cannot charge you for the costs of any adjustment.
Reasonable adjustments at work
Employers should make reasonable adjustments for disabled people who would otherwise find it hard to work or apply for jobs. But you can only expect an employer to make adjustments if they know, or should reasonably be expected to know, about your condition. If they do not know about it, they will not make adjustments. There is no set list of what reasonable adjustments can be.
At work, reasonable adjustments could include:
- allowing you extra time off work,
- allowing flexible working,
- changing your role, or
- offering counselling or mentoring.
You could also ask for some reasonable adjustments for your interview. They could include changing the room or the way the interviewer asks the questions.
You can read more about suggested reasonable adjustments for people with mental health conditions by clicking on the link below. It takes you to a Department of Health document called ‘Advice for employers on workplace adjustments for mental health conditions’:
Talk to your employer about how your condition affects you. You can discuss what would help you to overcome any problems.
Your employer may refuse to make an adjustment that you think is reasonable. In this case you could consider taking action.
Billy works for a large supermarket chain. He has to drive to work every day and in the winter, he does not finish work until it is dark. Billy has Post Traumatic Stress Disorder (PTSD). He finds it very difficult to drive home in the dark. This is because he gets bad flashbacks of things that have happened in his past.
Billy tells his manager, who knows about his mental health condition. His manager refuses to change his working hours in the winter. This would allow him to drive home while it is still light outside.
The supermarket is large and it would be easy for his manager to arrange an earlier shift. However, his manager says he is being “over-sensitive”. This could be a failure to provide reasonable adjustments. The employer could change his hours and it would help Billy.
Types of discrimination
There are a number of different types of discrimination. The Equality Act protects you against:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from a disability
- Failure to make reasonable adjustments
This is where someone treats you worse than others because of your disability. It can be hard to prove direct discrimination. You need to show that someone treated you less favourably than a person in the same situation who does not have a disability. This person is a “comparator”.
Louise has had bipolar disorder for all her adult life. She tries to get a loan from a loan company, and tells them that she has a mental health condition. Without looking at Louise’s credit rating, the loan company decides not to give Louise a loan because they think that people with bipolar disorder are unable to control money. The loan company continues to give loans to people in a similar position to Louise but who do not have bipolar disorder. This may be direct discrimination.
This is where there is a rule, criteria or practice that applies to everyone, but this rule means people with a disability are at a disadvantage. This will be discrimination unless the employer or service provider can justify it. They can do this if it is a “proportionate means of achieving a legitimate aim”. We explain this below.
Erica has anxiety and irritable bowel syndrome. This means that she needs toilet breaks more often than her colleagues. Her employer has a policy that staff are only allowed a total of three toilet breaks a day. This policy applies to all staff. But it has a bigger effect on some disabled staff including Erica. This policy may discriminate against Erica unless her employer can justify it. To do this they need to show why they need this policy to run the service.
Discrimination Arising From Disability
This is where an employer or service provider treats you unfavourably because of something relating to your disability. You would need to show that you were treated unfavourably compared to someone without your particular disability and the difficulties that come with it. If the service or employer cannot show why they need the policy, this may be discrimination.
Roger has severe depression. He takes antidepressants which make him tired and he sometimes comes into work late. He explains this to his employer. His employer thinks that this is unacceptable and dismisses Roger.
This could be discrimination due to Roger’s disability. This is unless the employer can give good reasons for the discrimination. We have explained this below.
Failure to Make “Reasonable Adjustments"
This is referred to in the Equality Act as ‘failure to comply with a duty to make reasonable adjustments.’ It is a form of discrimination not to make reasonable adjustments. This is only if a service provider or employer knows or should know about your disability, and the adjustments you asked for were ‘reasonable’.
This is when someone’s behaves in an aggressive or intimidating way towards you, or their behaviour creates a hostile or offensive environment for you. If someone does this to you because of your disability this is harassment.
Malia has paranoid schizophrenia and works in an office. Two of her colleagues call Malia “schizo” and draw and write abusive words and pictures on her desk. Malia tells her employer about this, who ignores the situation. Malia’s employer did not carry out the harassment, but the company is still responsible for harassment carried out by its staff.
If you complain, or take other action under the Equality Act, and people mistreat you this is victimisation. The Equality Act protects people who make a discrimination complaint. You should not face discrimination for trying to use your rights under the Act.
Can discrimination be allowed?
Some kinds of discrimination are not allowed. A service cannot discriminate directly against a disabled person.
Indirect discrimination and discrimination arising from a disability can affect a disabled person. However, a service or employer can allow this if it is a “proportionate means of achieving a legitimate aim”. We explain this sentence below.
What is a legitimate aim?
The Equality Act does not say what a “legitimate aim” is, but this could be quite broad. Legitimate means valid. Something is likely to be a valid aim if it is fair and reasonable.
This could include:
- the health and safety of staff or people using a service,
- the needs of the service, and
- needing to make a profit.
What does proportionate mean?
“Proportionate” means fair. There must be a balance between the service or employer’s needs and your needs as a disabled person.
When a service or employer is thinking about their aims, they should make sure they are fair. They should try to reach their aim in a way that discriminates the least.
Rosa works for an organisation where all employees must work from 9am to 5pm. Rosa takes medication for depression which makes her sleepy. This makes it difficult for Rosa to get to work on time and she is sometimes late and gets told off. Rosa asks for different working hours, from 10am to 6pm, so that she can start and leave work later. Her employer says no.
This could be indirect discrimination. Rosa’s employers say that this is a proportionate means of achieving a legitimate aim. They say that they cannot change her hours as there would be no security on site after 5pm. This would mean that Rosa’s health and safety would be at risk. They also say that the business needs Rosa to be at work from 9am to 5pm. These are the organisation’s business hours. They say there would be no work for her to do after 5pm.
An employer or service may explain a rule or procedure as being a ‘proportionate means of achieving a legitimate aim’. That doesn’t mean disabled people aren’t affected by it. However, the law says that these rules are fair and legal. This is sometimes called ‘objective justification’.
How would a service provider or employer know that I am disabled?
It is not possible to tell from looking at someone that they have a mental illness. This may affect you when you apply for a job or try to use a service.
The person you are dealing with is unlikely to know that you have a disability. This means they may not know that you might need reasonable adjustments.
You may not want to tell anyone about your mental illness when you are using services such as shops. But you may have more problems than others because of your mental illness. You can tell services about your condition. If you tell them, the Equality Act may protect you from discrimination.
You may think that your employer needs to know about your mental illness. It is up to you whether to tell them. There are some jobs where you need to tell your employer. This is because of the regulations which cover these jobs. The Equality Act stops most employers asking questions about your health before offering you a job.
At work, your employer does not have to make reasonable adjustments if they do not know, or cannot be reasonably expected to know, that you have a disability. This applies during the application process, at interview and at work.
What if everyone at work finds out about my condition?
You may decide to tell your employer about your mental illness. They should keep this information as private as possible. Your employer may need to tell some people at work about your mental health. They may need to so you can have reasonable adjustments. For example, your line manager may need to know. Your employer should check with you before telling other people in your workplace.
If other staff talk about your mental health the Equality Act may protect you.
Can an employer ask me health questions before offering me a job?
The Equality Act says that an employer cannot ask you questions about your health before they offer you a job. This is to stop discrimination because of your health.
In some cases employers can ask you questions about your health before offering a job. For example, if the job relates to national security.
Employers can also ask you questions if they need to find out:
- if you need any reasonable adjustments for interview,
- if you will be able to do something that is part of the job,
- personal information to track who is applying for jobs with them. This helps with their equality and diversity policies,
- if you could be part of an employer’s scheme that favours disabled people, or
- if you have a disability that you need for the job (for example, an employer with a project for deaf people may want a deaf person to run it).
For most jobs, you don’t have to answer health questions before you are offered a position. You could try to find out why the employer is asking these questions. This may help you decide whether to answer them.
Can an employer ask me health questions once they have offered me a job?
Once an employer offers you a job, they can ask you health-related questions.
You may be given a ‘conditional’ offer of a job. This means that getting the job depends on certain things. For example, an employer might say your job offer is conditional on satisfactory references.
Sometimes a job offer is conditional on health or disability checks. An employer can then ask questions about your health. If your job offer is then withdrawn, and you feel you were discriminated against, you could make a claim.
You may decide not to tell an employer about your mental illness. In certain jobs your employer could take disciplinary action later on. This includes roles like teaching and being a nurse or doctor.
I am a carer, am I protected by the Equality Act?
The Equality Act protects carers and relatives of people with a mental illness from direct discrimination.
An employer or service may treat you worse than others because you are caring for a disabled person. This is known as “discrimination by association”.
If you are a carer, the Equality Act protects you in your own right. It protects you from being treated unfairly because of any of the ‘protected characteristics’.
James is a carer for a man who has schizophrenia. James applies for a job and he tells them that he is a carer. The employer does not give James the job. Another person who is equally as qualified as James gets the job instead. James asks why and the employer says that his caring responsibilities would have got in the way of work. This could be direct discrimination by association with a disabled person.
How do I take action if I think I have been discriminated against?
Sometimes it can be difficult to prove discrimination. It is important to collect evidence and keep a record of what has happened.
For example, if you feel like someone is harassing you at work, keep a diary of what people say, who said it and when.
Try to sort things out informally
You can try to sort out your problem informally first. This could involve talking to the people who have discriminated against you. You could write them a letter. Remember to keep a note of any conversations or meetings you have.
If you try to sort things out informally you might miss the time limit for taking legal action. It is important to bear this in mind when you are deciding what to do and your next steps.
You could try raising your concerns through your employer’s disputes procedure. Especially if informal action doesn’t work. This is called ‘bringing a grievance’.
The Advisory Conciliation and Arbitration Service (ACAS) has produced a code of practice on disciplinary and grievance procedures. You can find it https://www.acas.org.uk/index.aspx?articleid=2174.
The code of practice explains how employers should handle complaints at work. An employer or employee may not follow this code. In this case you could go to an employment tribunal.
You can take legal action to get an employment tribunal to look into your case.
The tribunal is like a court. They can decide if someone has discriminated against you. The tribunal will sometimes award you compensation.
There is a strict time limit for asking the employment tribunal to look at your case. You have three months minus one day.
This means that if someone discriminated against you on 13th March, you will have until 12th June to take action.
You must tell ACAS that you intend to make a claim to the tribunal. You’ll be offered the chance to try and settle the dispute without going to court by using ACAS’s free Early Conciliation Service.
Time you spend in early conciliation doesn’t affect the total time left to make a claim.
If early conciliation doesn’t work, ACAS will send you an early conciliation certificate – you can use this when you make your claim to the tribunal.
ACAS will send you your certificate. Then you’ll have the same amount of time to make your claim as you did before you started conciliation.
You can read more about employment tribunals and how to apply for one here.
ACAS has produced a guide to asking questions at work if you think someone has discriminated against you. Using this will help you get evidence together before going to an employment tribunal. You can get a copy of the guide at: https://www.acas.org.uk/index.aspx?articleid=4971
If you want advice on employment tribunals you can contact the ACAS helpline for free advice. You can find their details in the ‘Useful contacts’ section at the end of this page.
Taking action in cases involving service providers
If you think a service provider has discriminated against you, you can take this to the county court. You have a strict time limit of six months minus one day to do this.
You should bear this in mind if you try to sort out the problem informally. You may run out of time to take your problem to the county court if you do so.
Can I get legal help with taking action in my discrimination case?
If you are on a low income you might be able to get legal aid to pay for specialist legal advice. This is called representation. This is when someone who is legally trained argues your case.
If you have problems with an employer, you can only get legal aid if there are discrimination issues. Legal aid does not cover other kinds of employment problems.
Civil Legal Advice can tell you if you can get legal aid. You can also check this on their website. If you can get legal aid they can give you details of lawyers who will help legal aid clients. You can find their details in the ‘Useful contacts’ section at the end of this page.
The Equality Advisory and Support Service (EASS) can provide advice on discrimination issues. You can find their details in the ‘Useful contacts’ section at the end of this page.
You can find out more about legal aid here.
How much does it cost to take legal action?
From the 26th July 2017 you will no longer have to pay any fee’s to go to an employment tribunal. Before then you had to pay a fee depending on the type of claim you were making.
The form you have to fill in to go to an employment tribunal may still say you have to pay a fee. But this is not correct. The forms may be updated to make this clear.
The County Court costs vary, depending on how much compensation you are asking for.
You will have to pay a small amount to make your complaint to the court.
If you lose your case you may have to pay the costs of the service that you were complaining about. This could be very expensive so it is important to get legal advice before making a claim.
I think my time limit has run out, what can I do?
You will need to get specialist advice as soon as possible.
If there is a good reason why you missed the time limit, you can sometimes have it extended. However, this is quite rare.
You should always try to make sure that you take action within the time limits.
An employer or service may have discriminated against you over a period of time. In that case the time limit may start from the last time someone discriminated against you.
Generally the time limit will start from the date of each act of discrimination. It is best to talk to a specialist as soon as you can to make sure you don’t miss a time limit.
What is The Equality Duty?
The Equality Duty means that public bodies have to do certain things.
A public body is an organisation that carries out a public service but is not a government department. An example is the Advisory, Conciliation and Arbitration Service (ACAS).
The Equality Duty asks public bodies to:
- Stop discrimination, harassment and victimisation
- Promote equality between people with a protected characteristic and those without
- Promote good relations between people with a protected characteristic and those without
Private organisations that are doing work for public bodies also have to do this. An example would be if a private company were running a day care centre for the local council.
Public organisations must make sure that they treat disabled people and non-disabled people the same. To do this they must:
- Remove or minimise disadvantages that disabled people face
- Take steps to meet the needs of people with disabilities
- Encourage people with disabilities to take part in activities that they are not normally able to take part in
The public organisation must try to tackle prejudice and increase understanding of disability.
- This information only applies to people in England.
- This information was up-to-date and correct at the time of writing.
- The ‘examples’ in the text are not legal cases or particular people. They are examples to help your understanding of the law. A court or tribunal could interpret the law in a different way to our examples.
Advisory, Conciliation and Arbitration Service (ACAS)
ACAS provide free and impartial information and advice to employers and employees about workplace relations and employment law, including the Equality Act 2010.
Telephone: 0300 123 1100 (Monday to Friday 8am-6pm)
Civil Legal Advice
This is a government funded agency that deals with legal aid. The can do a financial check to see if you are eligible, and signpost you to solicitors who work under legal aid.
Telephone: 0345 345 4 345 (Mon to Fri, 9am to 8pm; Sat, 9am to 12:30pm) Minicom: 0345 609 6677
Equality Advisory and Support Service (EASS)
This organisation gives practical advice and information about the Equality Act 2010 and discrimination.
Telephone: 0808 800 0082 (Monday to Friday: 9am to 7pm, Saturday 10am to 2pm)
Address: FREEPOST EASS HELPLINE FPN6521
Equality and Human Rights Commission
This organisation provides information about discrimination and the Equality Act