Mental health, discrimination and the law Jess Belmonte Employment Relations and Union Services CSP Today I am going to talk about mental health, discrimination and the law. The law is important but it’s not the be all and end all. In many cases the law is the last resort when everything has gone wrong. I believe that we can achieve much better than a minimal legal standard at work when we work together and put the emphasis on wellbeing and have positive and supportive places to work.

Introduction Can a mental health condition be a disability? Disability discrimination and the Equality Act 2010 (EA10) Right to reasonable adjustments in the workplace Stress and H&S at work Today I’m going to briefly cover: Can a mental health condition be a disability? The law concerning disability discrimination and the Equality Act 2010 (EA10) Right to reasonable adjustments in the workplace I’m also going to touch briefly on stress and a slightly wider look at H&S at work as a disability, mental health or otherwise, can impact on our work but of course work can impact on our health and wellbeing as well.

Can a mental health condition be a disability? Yes – however disability has a strict definition under EA10 A “physical or mental impairment” that has a “substantial and long- term adverse effect” on their ability to carry out “day to day activities” “Substantial” means more than minor or trivial “Long term” means it has lasted for 12 months or is likely to last for 12 months “Day to day activities” are one which are normal for most people Yes – however in a legal context disability has a strict definition under EA10 A “physical or mental impairment” that has a “substantial and long-term adverse effect” on their ability to carry out “day to day activities” “Substantial” in this context means more than minor or trivial and this is a low bar. “Long term” means it has lasted for 12 months or is likely to last for 12 months. Some conditions are automatically classed as a disability such as cancer, an HIV diagnosis, MS and visual impairment. “Day to day activities” are one which are normal for most people. These can be work or non-work related but must be found in a range of different work situations e.g. answering the phone, standing for long periods but not playing the piano even if you are a concert pianist).

Disability discrimination Direct discrimination – individual is treated less favourably due to their disability Indirect discrimination – a “provision, criteria or practice” (PCP) puts an individual with a disability at a disadvantage Additional protection in EA10 - discrimination “arising from” disability Direct discrimination – individual is treated less favourably due to their disability E.g. Person with a mental health condition is refused a promotion on the grounds it will be too much for them. Person in an interview not given the job despite performing best due to disclosing a MH condition. Indirect discrimination – a “provision, criteria or practice” (PCP) which appears to treat everybody equally but actually puts an individual with a disability at a disadvantage Provision criterion or practice (also known as PCP) refers to anything related top the job. Policies, procedures, rules, handbooks, customs, the way we do things around here, the physical building, the computer system used etc E.G. Hot desking policy may discriminate against a person with social anxiety disorder or OCD Claims for indirect discrimination can be difficult to prove and the employer can justify indirect discrimination on the grounds that it is a “proportionate means of achieving a legitimate aim”. Additional protection in EA10 - discrimination “arising from” disability. In direct and indirect discrimination you will need to have a compactor, real or hypothetical. Discrimination arising from a disability is unfavourable treatment rather than less favourable than a comparator.

Right to reasonable adjustments Employer has a legal duty to take “reasonable steps” to alleviate any substantial disadvantage faced by a disabled worker Duty is owed to the individual disabled person – dependent on their needs and not abstract “Steps” has a very wide meaning, it can refer to any change to any PCP that removes a disadvantage Employers are only obliged to make reasonable adjustments – this can be impacted by practicality, financial considerations, impact on others, size of employer Employer has a legal duty to take “reasonable steps” to alleviate any substantial disadvantage faced by a disabled worker – it’s important to understand that the adjustment must actually alleviate the disadvantage. It’ not enough for the employer to have generic adaptations in place e.g. ramp if the adjustment required is Dragon software or a change to working hours. Duty is owed to the individual disabled person – dependent on their needs and not abstract “Steps” has a very wide meaning, it can refer to any change to any PCP that removes a disadvantage Employers are only obliged to make reasonable adjustments – this can be impacted by practicality, financial considerations, impact on others, size of employer. Example would be that a micro business working on the third floor of a listed building might not be expected to put in a through floor lift but a large teaching hospital would be expected to provide minutes of a meeting in braille.

Examples of reasonable adjustments Interview arrangements Selection procedures Reallocating duties Flexible approach to hours Time off for medical treatment Work from home Minimise noise Reserved parking space Increased supervision Mentor or buddy system Phased return after sickness Extra training Modifications to the application of policies e.g. sickness absence Physical features Auxiliary aids

Stress at work Stress is a huge H&S concern for TU reps and members 10 million lost working days / yr Feeling stressed in itself is not a mental health condition but prolonged exposure can cause depression & anxiety Various sources of legal rights in relation to workplace stress Stress is a huge H&S concern for TU reps and members TUC 2016 biennial safety reps survey found that stress was identified as a top five hazard by 70% of safety reps. Stress is responsible for a third of all new instances of work related ill health and there are 10 million lost working days / yr It’s important to note that feeling stressed in itself is not a mental health condition but prolonged exposure can cause mental ill health to develop, most commonly depression & anxiety There are various sources of legal rights in relation to workplace stress and these are obviously also relevant to rights around mental health and wellbeing.

The law on workplace stress Health and Safety at Work Act (1974) - Overarching duty of care The Management of Health and Safety at Work Regulations (1999) Assessment of H&S risks Identify preventative and protective measures needed to reduce the risk Working Time Regulations (1998) - Protect workers health and safety Safety Representatives and Safety Committees Regulations (1977) - Gives safety reps legal rights to inspect and tackle workplace stress The HSWA 1974 sets out the basic framework for H&S law in the UK. Under section 2 the employer owes a duty of care to ensure the health, safety and welfare at work of all of their workers. What do we mean by duty of care? Requirements under an employer's duty of care are wide-ranging and may manifest themselves in many different ways, such as: Clearly defining jobs and undertaking risk assessments Ensuring a safe work environment Providing adequate training and feedback on performance Ensuring that staff do not work excessive hours Providing areas for rest and relaxation Protecting staff from bullying or harassment, either from colleagues or third parties Protecting staff from discrimination Providing communication channels for employees to raise concerns Consulting employees on issues which concern them. The relevant part of the Management of Health and Safety at Work Regulations is about risk management. Regulation 3 requires employers to make suitable and sufficient assessment of health and safety risks and to identify preventative measures to reduce those risks. “Employers must develop a coherent overall prevention policy covering technology, work organisation, working conditions, social relationships and the working environment” Don’t forget that the WTR are there to protect worker’s H&S. I won’t dwell on the details now but do be aware that we have a very comprehensive WTR info paper via the CSP website with worked examples on daily and weekly rest. And finally the Safety Representatives and Safety Committees Regulations give safety reps extensive (and underused) legal rights in the workplace to investigate and tackle workplace stress. They have the right to time off to: Investigate hazards Inspect the workplace Take member’s concerns to management To be consulted by management on H&S issues

Key points A mental health condition can be a disability but needs to meet the definition in EA10 People with a mental health condition are protected from discrimination – direct and indirect Employer has a statutory obligation to make reasonable adjustments to remove any substantial disadvantage faced by a disabled person “Reasonable steps” is very widely defined Stress is not a mental health condition but prolonged exposure can lead to mental ill health A number of H&S laws cover this area but are poorly enforced

Questions?