Mental illness discrimination policy

In this policy, we are specifically trying to avoid discrimination against anyone who has a mental health condition that meets the protected characteristics of a disability, as this is when discrimination is classified as illegal.

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A mental health condition is considered a disability if it has a substantial and long-term effect on a person's normal day-to-day activity.

— Equality Act 2010

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According to the Equality Act, a person does not need to have their mental health condition diagnosed in order for it to classify as a disability, but they do still need medical evidence that their ability to carry out normal day-to-day activity is impaired. This usually takes the form of a doctor's note.

This policy will go through three stages of the employee life cycle (hiring, onboarding & employment, and exit) in which discrimination may take place, and set out clear standards to minimise the chances of this happening.
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Avoiding discrimination during hiring

When attracting, assessing and interviewing candidates for a role, the key legal requirement to bear in mind is to avoid any potential discrimination towards someone with a mental health condition that meets the protected characteristics of a disability.

It's illegal to ask a candidate about the state of their mental health at any time before a job offer is made (without good reason), for example during early correspondence with them or at any time in the interview process.

There are some exceptions to this law, however. As an employer, you can ask a candidate whether they have a disability (mental or physical) in order to:

• find out whether the applicant will be able to take an assessment for the job
• find out whether the applicant will need reasonable adjustments to the application process
• find out whether the applicant will be able to do tasks that are central to the job (though you as the employer should also consider the reasonable adjustments that you might need)
• find out if you as the employer are receiving job applications from a diverse range of people

Some kinds of reasonably adjustments that you might be able to make to the application process, if a candidate has a mental illness that classifies as a disability:

• Giving them the option to do a take-home exercise instead of a live exercise
• Giving them the option to do a phone call or video call instead of an in-person interview
• Giving them extra time to complete a work task or take-home exercise
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What's okay to ask an applicant, and what isn't:

✅  "Please contact us if you have a disability and need any adjustments to be made to the application or interview process"

❌  "Do you have a history of poor mental health?"
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Avoiding discrimination during onboarding & employment

The key legal requirement for someone who is (or is about to start) working at your company is to figure out any reasonable work adjustments that need to be made for them.

New joiners should be asked if they have a disability, which includes any mental health conditions that classify as disabilities.

Employers have a legal responsibility to provide relevant reasonable work adjustments for any employee with a mental health condition that classifies as a disability.

Reasonable adjustments might include things like:

• Time off work. This might be recurrent and short, for example having a couple of hours off every week to attend therapy, treatment or doctors' appointments. It could also be longer and preventative, for example a few days off if the person is becoming unwell.
• Breaks. Knowing that they can take breaks when needed, more than the allowance for regular employees, can be another reasonable adjustment. For instance, a person who experiences panic attacks might benefit from being able to go outside for 15 minutes or so.
• Support with managing workload. This is hopefully something that all employees already get, but it might be necessary to provide extra support when someone has a mental health condition. It might mean more frequent one-to-ones with their manager, or a temporarily reduced workload during times when their mental health condition becomes worse.
• Flexible hours. Someone with a mental health condition might find it difficult to use public transport during rush hour, or might be drowsy in the mornings due to medication. Agreeing on different working hours to other employees, or agreeing on a degree of flexibility based on how they're doing, can help.
• Methods of working. Perhaps a different piece of equipment, like ear plugs, might help. Or perhaps allowing the person to work differently, for example working on paper instead of on a computer at times, could be tried.

For more on reasonable adjustments, we'd recommend looking at this page by Rethink Mental Illness.

As an employer, you should ask the employee what kind of reasonable adjustments might work for them, and run any suggestions by them before implementing anything. A reasonable adjustment that's right for one person with bipolar disorder might not be helpful to another person with bipolar disorder. Mental health requires more nuance than physical health, especially when it comes to adjustments.

Finally, a note on what's meant by 'reasonable'. An employee isn't entitled to any adjustments they like. 'Reasonable' means considering how effective, practical, affordable and disruptive that adjustment would be — as well as taking into account the type and size of employer, and the requirements of the role itself. And reasonable adjustments aren't set in stone: if they stop working for either party, the case can be made to change them.
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Reasonable adjustments might include (and not include):

✅   Working 11am-8pm instead of 9am-6pm, to avoid the rush hour commute

❌   Not using a phone for a job in customer service (unless a message-only role is available)

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Avoiding discrimination during poor employee performance or dismissal

There are a few requirements to bear in mind here, and they all relate to what is and what isn't legal when it comes to the dismissal of an employee with a mental health condition that classifies as a disability.

Dismissing an employee with a mental health condition that classifies as a disability is illegal unless you as the employer have followed certain procedures to try and keep that person in employment first.

In short, the law states that someone can be dismissed if (a) they've been absent from work many times and (b) they aren't capable of doing their job anymore.
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As the employer, you need to follow certain procedures before a dismissal can be legal:

• Investigate their mental health condition. Get an occupational health professional to write a report, request to see medical records, ask for a GP's recommendation.
• Consult the person. Ask them about their condition and how it affects them and their ability to do the job; ask them how you can help and what would help them to keep working.
• Make reasonable adjustments. As we went through in an earlier section, you need to try and keep them in the role by changing things like their hours, support, or ways of working.
• Explore different options with them. Is there another role they could move to that would be more suitable? Could you reduce their contracted hours (and pay)?
• If they're off work, keep the role open for them as long as reasonably possible. Here, 'reasonably' means as long as you can without undue detriment to the business.

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When handling the poor performance or the potential exit of an employee with a mental health condition:

✅   Follow the proper procedure before any dismissal or formal warning takes place

❌   Take action without consulting the employee first, and exploring different options with them‍‍