Be kind: anxiety and depression in the workplace, and the law
The issue of mental health now receives widespread media coverage and has been brought into sharp focus due to the widespread impact of the coronavirus pandemic on people’s wellbeing. Naturally, has implications within the workplace.
Whether poor mental health is caused by work, exacerbated by work, or related to outside factors, employers must be aware of how mental health issues can impact their people and their organisation. After all, stress, anxiety and depression is the leading cause of work-related ill health, accounting for 51% of all ill-health cases and 55% of all days lost due to work-related ill health. It is therefore very much a business issue.
Organisations must also understand what the law expects of them as an employer. As well as a duty under health and safety law to protect the health, safety and wellbeing of employees, if an employee is suffering with a disability, the Equality Act 2010 requires employers to make reasonable adjustments to enable them to do their job. Further, employers must not discriminate against employees because they have a disability. This might include dismissing them, demoting them, or disciplining them for poor performance related to their disability.
The question is, does anxiety and depression quality as a disability?
Depression, anxiety and employment law
An employee is considered to have a disability under the Equality Act 2010 if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities. This can include depressive and anxiety-related impairments.
Part of considering whether the impairment constitutes a disability includes considering the effect on the employee’s ability to cope in their job. Failing to recognise that an employee’s anxiety or depression may amount to a disability continues to cause employers all sorts of legal issues.
In 2014, in the case of Saad v Southampton University Hospitals NHS Trust, the Employment Appeal Tribunal (EAT) considered whether anxiety and depression can be classed as a disability under the Equality Act 2010. When Mr Saad’s contract as a Specialist Registrar training to become a Cardiothoracic Consultant was not renewed by the Trust, he claimed that, because his depressive and general anxiety disorder was a disability, he suffered disability discrimination.
Although the EAT acknowledged that Mr Saad had a mental impairment due to his depressive and general anxiety disorder, it upheld the Tribunal’s decision that he did not have a disability within the meaning of the 2010 Act, as his condition did not have a “substantial” or “long-term” adverse effect on Mr Saad’s ability to carry out normal day-to-day activities. The EAT made the distinction between Mr Saad’s difficulties with certain medical textbooks and communicating with his colleagues and a situation where someone cannot, for example, undertake everyday tasks such as leaving their home or getting dressed, the latter of which would indicate a disability within the meaning of the 2010 Act.
Although in this case it was decided that the depressive and anxiety disorder was not a disability, such a disorder can be a disability in some cases.
Each case depends on the specific circumstances of each employee and a Tribunal will decide each case on its own facts and merits. Concerns of the Tribunal regarding the quality and consistency of Mr Saad’s evidence was a significant factor in his case, but in other cases, an employee may give more persuasive evidence on the effect of a mental or physical impairment on their day-to-day activities.
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So, is anxiety and depression considered a disability in the UK?
In short, it depends. Case law has shown that Tribunals can make different determinations based on the specifics of each case and how the evidence is presented.
Because the extent of people’s mental health problems, and how these conditions manifest, varies significantly from one person to the next, there is no definitive ‘yes’ or ‘no’ answer when it comes whether anxiety or depression is a disability. This can make things difficult for employers, who will want to stay on the right side of the law.
It’s therefore important that, as an employer, you familiarise yourself with the Equality Act 2010 and always proceed with caution when considering taking action against employees who suffer from mental health conditions. That’s not to say you cannot discipline or dismiss employees whose anxiety or depression does amount to a disability; however, you must make sure that you reason for doing so is entirely unconnected to their disability, as getting it wrong may mean potentially uncapped Tribunal awards if disability discrimination is proved.
By investing in mental health support, implementing reasonable adjustments, and training your managers to recognise and address mental health concerns, you can address mental health issues early and prevent them from escalating into bigger, more expensive problems.
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Not sure how best to manage mental health in your workplace? If an employee’s mental health condition is impacting their attendance, productivity or performance, our Employment Law and HR experts can help you identify reasonable adjustments to support their wellbeing, while minimising disruption to your organisation and avoiding legal risks.
We can also offer Mental Health & Wellbeing at Work training to raise awareness, confidence and competence across your organisation, and Occupational Health support to help you manage the impact of work on health and health on work.
For more information, get in touch today on 0345 226 8393 or request your free consultation using the button blow.