Mental Health Disability and The Equality Act.

This week was a long week. I had to try to convince a manager that depression was a disability as much as any other.  This manager herself suffers from depression.  In fact the manager sat in front of me crying for the first five minutes of our informal meeting because her emotions are a bloody jagged mass.

When dealing with cases there is always a higher principal at play.  In this case the higher principal is that this manager has the ability to take a principled stand by applying her own logic to the case, and not worrying what those higher than her in the so-called management hierarchy think.  Basically it is her choice whether to be a lacky and pay lip service to mental health equality in the workplace, or actually take a stand.  If managers make the principled choice and back their member of staff in these cases, in my view everything goes back to normal.  If they don’t lives are often ruined as people have to then fight for their jobs.

I will use anything to defend a member of staff against this kind of scenario, where they have been off work sick and might suddenly face a written warning and dismissal.  And one of the  weapons I use is the Equality Act 2010.  In this case I will be discussing sickness absence in terms of how it might play out in a large organisation, with view to cases I come across in my daily life.  I am not a lawyer, and haven’t yet been to an Employment Tribunal.  These are simply arguments I would make from my own reading to try to convince a manager in a certain context to think differently about a course of action they might be deciding upon.  It is a tool in the tool box, and weapon in the arsenal, a way of trying to prevent an issue developing.

So, after that long winded disclaimer, I hope you haven’t just thought oh…eff it…this is terminally dull…this is a waste of life…etc…because I’m sure those sorts of vibes drifting about in the atmosphere will make us all unhappy.

There.

So, the Equality Act includes a number of what are known as protected characteristics.  These are:  Age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity.

So, if an employer is messing you around and you figure you are being harassed due to any of these issues, then that employer is running the risk of falling foul of equality law, and the hefty fines, compensation payments etc, that this entails.

However, I am discussing disability so here goes:

  1.  What is a Disability under the Equality Act:

In a nutshell Disability under the Act can be defined as a long-term impairment that has had an effect on day to day living and normal activities, and that is likely to last longer than a year.  So, using myself as an example, I have had a long-term mental health condition.  For three months the condition meant that I couldn’t cope with normal activities such as being around people, or staying awake, or doing household activities without great effort.  Also, being able to follow a list of instructions, or sit down for a reasonable amount of time (I fell asleep if I sat down, so did everything standing up for a period of time until I normalised, this wouldn’t of course have been practical at work, where the job is desk based. ) Therefore my condition would probably count under the equality act as it is likely to last now over a year, and also because without medication it is unclear what my health would be like at the moment.

It is not necessary to know what caused the impairment.  For instance, liver damage might cause impairment to the ability to perform normal activity, but it is not necessary to know what caused the liver damage.

Okay, so  with regards to other cases of disability this can get quite complex, and it would ultimately be an Employment Tribunals job to establish fully whether the impairment would count as a Disability.  However, it is what I would be arguing for an employer in a scenario with regards to a long-term, life affecting condition.

2.  Reasonable Adjustments for a Disability:

So an employer is expected to make reasonable adjustments to accommodate an impairment as much as can reasonably be expected.  So, what would be reasonable for one business, would not necessarily be reasonable for another.  Again, ultimately this would be for a Tribunal to have the final say on, however, failure to make adjustments at all, would be a clear sign that there may be a case for direct, or indirect discrimination.  However, it should be stated again that what is reasonable would be decided against the size of the business, how many staff it employs, how much money the employer has at its disposal, and whether the adjustment would have a reasonable effect on the  business. Again, the

What adjustments might I have to make?
The Act does not list the sorts of adjustments that you might have to make, but examples might be:
• providing recruitment literature in large print;
• providing in interview situations extra equipment at reasonable cost, removing movable barriers
like furniture, or holding the interview in a different, wheelchair accessible room;
• allowing a guide or hearing dog into the workplace;
• purchasing specialist equipment, such as an ergonomic chair;
• discounting disability-related sickness leave for the purposes of absence management;
• providing additional supervisory guidance / support;
• including a disabled parking space in the car park;
• allowing different start and end times to the working day.

(taken from Equality Act 2010: Duty on employers to make reasonable adjustments for their staff found in link below:

https://www.gov.uk/government/publications/equality-act-guidance

The literature also makes the following point to be taken into account:

Equally, if it is clear that there isn’t an adjustment that can reasonably be made
to avoid a disadvantage , then you can lawfully decline the request.

I am very aware that this has been a dry subject today, but when used as a tool to convince a manager within a huge public organisation that you do not have to discipline staff for having an impairment, (and they do take some convincing) by pointing out that their behaviours risk crossing the line into discrimination whether direct or indirect, and they risk standing in front of a Tribunal to justify their decisions, might sometimes set their little management brain cogs working on behalf of an employee.

Thanks for reading.  If you have anything to say or add to this piece, or any questions, please comment. below.

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