Discrimination and mental health

Overview

• The Equality Act 2010 protects disabled people and their carers from unfair treatment. This includes many people with a mental illness.
• 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 ‘examples’ given on this page are not legal cases or real people. They are examples to help your understanding of the law. A court or tribunal could interpret the law in a different way to the examples on this page.

About

Does the Equality Act protect me because of my 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:

• age,
• race,
• sex,
• sexual orientation,
• pregnancy and maternity,
• gender reassignment,
• religion or belief,
• marriage or civil partnership, or
• disability.

These are known as “protected characteristics”. On this page we have focused on ‘disability’. 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:

• shops,
• petrol stations,
• hairdressers,
• hospitals,
• libraries,
• 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 does not specify that you to have a diagnosis in order to be covered. It 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.

This definition is quite technical. 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, or
• 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:

• shopping,
• 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.

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. You might struggle to carry out day-to-day activities without this medication or therapy. You can still be defined as disabled under the Act.

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.

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.

But 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 in the next section.

What is not a disability in the Equality Act?
Regulations state that the following are not disabilities:

• alcohol, nicotine or any other substance addiction. This doesn’t include addiction caused by medical treatment, such as addictive drugs prescribed by a doctor,
• hayfever, or
• tattoos or piercings.

The regulations also state that if you have a tendency to do any of the following things, these are not classed a disability:

• start fires,
• physically or sexually abuse other people,
• expose private parts of your body in public, known as exhibitionism,
• watch people who are carrying out intimate acts, known as voyeurism, and
• stealing.

Reasonable adjustments

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.

But there is no list of what are reasonable adjustments and what aren’t. 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 can’t 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 don’t 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 time off work for treatment relating to your disability,
• 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’:

www.nhshealthatwork.co.uk/images/library/files/Government%20policy/Mental_Health_Adjustments_Guidance_May_2012.pdf

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. See further down this page for further information on this.

Types of discrimination

What kinds of discrimination are there?

There are different types of discrimination. The Equality Act protects you against:

• direct discrimination,
• indirect discrimination,
• discrimination arising from a disability,
• failure to make reasonable adjustments,
• harassment and
• victimisation.

Direct discrimination

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 doesn’t have a disability. This person is a “comparator”.

Indirect 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 in the next section.

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 can’t show why they need the policy, this may be discrimination. We have explained this in the next section.

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’. We explained reasonable adjustments in the first section on this page.

Harassment

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.

Victimisation

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 shouldn’t face discrimination for trying to use your rights under the Act.

Can discrimination be allowed?

Some kinds of discrimination aren’t allowed. A service or employer can’t 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 doesn’t 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.

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’.

Employment

How would a service provider or employer know that I am disabled?

It isn’t 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.

Services

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.

Employers

You may think that your employer needs to know about your mental illness. It is up to you whether to tell them.

But 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 doesn’t have to make reasonable adjustments if they do not know, or can’t be reasonably expected to know, that you have a disability. This applies during the application process, at interview and at work.

You can find more information about ‘Work and mental illness’ by clicking here.

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 can’t 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.

When you start a job, you do not have to share that you have a mental illness.

But if your mental health condition is affecting how you work, it is important to tell your employer so that they can support you.

Your employer has a ‘duty of care’ to you. This means that they must do as much as reasonably possible to support your health and wellbeing.

You may choose not to tell your employer about your mental illness. If you struggle to do your job because of a mental illness, and your employer doesn’t know this, they cannot offer you any support or adjustments. They may assume that you are unable to do your job and take disciplinary action against you.

If you want advice on how to manage your mental illness at work, you should speak to the relevant professional body for your job.

You can find more information about ‘Work and mental illness’ by clicking here.

Carers and volunteers

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’.

I am a volunteer; am I protected by the Equality Act?

Volunteers are not generally covered by the Equality Act as they don’t have a contract of employment. Most volunteers are not employed by an organisation and will just get money towards travel and expenses.

But when an organisation provides a volunteering opportunity for someone, this may be seen as providing you with a service. Also, if you have a contract which involves being paid more than travel and expenses, then this could be considered a ‘service’ and so you may be covered by the Equality Act 2010.

The law can be complicated on this issue. It is considered best practice for volunteers to be considered the same as service users or clients. Organisations should avoid discrimination in how they treat volunteers.

Action

What can I do 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.

Grievance procedure

You could try raising your concerns through your employer’s dispute 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 here: www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

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.

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 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.

Conciliation is when an independent person talks to both you and your employer about your dispute. It gives you the chance to come to an agreement without having to go to tribunal.

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.

You will have a minimum of 1 calendar month from the date of receipt of the certificate to make a claim to the employment tribunal.

In some cases, you might have longer than 1 month to make a claim to the employment tribunal. Working out the exact time limit can be complicated. You might want to get legal advice.

You can read more about employment tribunals and how to apply for one here: www.gov.uk/employment-tribunals

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: www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures

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 bottom 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.

How do I make a complaint about discrimination from the NHS?

If you feel that your GP or another NHS professional has discriminated against you because of your mental illness you can make a complaint.

For more information look in our factsheet, ‘Complaints - NHS and social services’ by clicking here. We have some template complaint letters at the back of the factsheet which you may want to use.

Can I get legal help for 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.

Legal Aid is available for discrimination cases. To get legal aid, you usually need to show you cannot afford to pay for legal costs and your problem is serious. Legal aid doesn’t 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 bottom 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 bottom of this page.

You can find more information about ‘Legal advice’ by clicking here.

How much does it cost to take legal action?

Employment
From the 26th July 2017 you will no longer have to pay any fees 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.

Services
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 act 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.

Usually, 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.

Equality Duty

What is The Equality Duty?

The Equality Duty means that public bodies have to do certain things for service users.

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).

They are included in the ‘Useful Contacts’ section at the bottom of this page.

The Equality Duty asks public bodies to:

• stop discrimination, harassment and victimisation,
• promote equality between people with a protected characteristic and those without, and
• 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, and
• 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.

Useful contacts

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)
Relay UK service: 18001 0300 123 1100
Website: www.acas.org.uk

Civil Legal Advice
This is a government funded agency that deals with legal aid. They 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
Website: www.gov.uk/civil-legal-advice

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)
Text phone: 0808 800 0084
Address: FREEPOST EASS HELPLINE FPN6521
Email online form: www.equalityadvisoryservice.com/app/ask
Website: www.equalityadvisoryservice.com

Equality and Human Rights Commission
This organisation provides information about discrimination and the Equality Act

Website: www.equalityhumanrights.com