Discrimination and mental health

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1 Discrimination and mental health Equality Act 2010 This factsheet may be useful if you feel that you have been treated unfairly (discriminated against) because of your mental illness. This factsheet explains the Equality Act 2010 which covers disability discrimination. It explains how the Equality Act might apply to you, when you are at work, applying for jobs or using services. The Equality Act 2010 protects disabled people from being treated unfairly in their everyday lives. This includes many people with a mental illness. Being treated unfairly compared to other people is called discrimination. If you have been treated unfairly, you have been discriminated against. The Equality Act 2010 explains what a disability is. If the definition covers your mental illness, you are protected against being discriminated against, or being harassed or victimised because of your mental illness. You may also have the right to get your employer to make changes to your job due to your disability. These are known as reasonable adjustments. The Equality Act protects you from discrimination at work and when you are applying for jobs. It also protects you when you use services. Nobody should be discriminated against because of their mental health when accessing housing, education or any other services. Sometimes, the Equality Act will also protect carers of people with a mental illness. 1

2 This factsheet covers: 1. Does the Equality Act protect me because of my mental illness? 2. What kinds of discrimination are there? 3. Can discrimination be justified? 4. How would a service provider or employer know that I am disabled? 5. Can an employer ask me health questions before offering me a job? 6. I am a carer; does the Equality Act protect me? 7. How do I take action if I think I have been discriminated against? 8. The Equality Duty 1. Does the Equality Act protect me because of my mental illness? The Equality Act protects certain groups of people from being treated unfairly. Being treated unfairly is called discrimination. The Equality Act protects you from discrimination because of your: Age Race Sex Sexual orientation Pregnancy Gender reassignment Religion or belief Marriage of civil partnership Disability. These are known as protected characteristics. This factsheet focuses on disability. However, remember that if you have a mental illness, the Equality Act also protects you from discrimination because of your age, race, sex and the rest of the list above. All employers and service providers in England, Wales and Scotland must follow the Equality Act, This means the Act protects you in work, education or housing or when you are trying to buy goods, facilities or services. Services include: Top shops petrol stations hairdressers hospitals libraries gyms estate agents

3 What does the word 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 says you are disabled 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. 1 This sounds quite technical; we have broken it up below. What is a mental impairment? Most mental illnesses will be a mental impairment. The Equality Act does not define impairment, but normally it will include the effects or symptoms of the illness, as well as the diagnosis. Side effects of medication can also be an impairment. So if you take antipsychotic medication and this makes you very tired, this tiredness could be a mental impairment. 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: 1. Has lasted for at least 12 months; or 2. Is likely to last for at least 12 months; or 3. 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. Example Sarah has a mental illness and finds it harder to remember things, concentrate, plan ahead or sleep. This means she finds it more difficult to get up in the morning, plan her journey to work and go shopping. These are just some examples of things that could be day-to-day activities. I am getting treatment that stops my symptoms affecting my dayto-day life. Do I still have a disability? Yes. However, you need to be able to show that your mental illness would affect your day-to-day activities if you were not getting treatment. 2 You may need medical evidence from your doctor to back this up.

4 Example Terry has depression and is getting counselling and takes medication. This controls his symptoms and helps him sleep. Without this treatment, he would not be able to sleep, which would stop him doing many dayto-day things. So the Equality Act still protects him. What if my illness comes and goes? Many people recover from mental illness and some people have conditions which come and go. These are known as fluctuating symptoms. The Equality Act protects people from being discriminated against because they used to have a mental illness or if their symptoms have got better but could return in the future. 3 Example Mo recovered from depression three months ago. He has had depression a number of times before. He now has no symptoms, and he would like to return to work. Although Mo has recovered, his psychiatrist tells him that evidence shows that there is a strong chance that he will have another episode of depression in the next three years. The Equality Act protects Mo from discrimination by potential employers because of his past disability. He is also protected as a disabled person because his symptoms could return in the future. What if I have a short-term illness? If your doctor thinks your illness will only last a short time the Equality Act s definition of disabled may not cover you. However, the Equality Act may still protect you. If someone has directly discriminated against you (see next section) because they thought you were a disabled person, you may still be able to take action. This is known as discrimination by perception. What is not a disability in the Equality Act? Regulations have said that certain conditions are not disabilities: An addiction to alcohol, nicotine or any other substance unless medical treatment caused the addiction (for example, from being prescribed addictive drugs) Starting fires Physically or sexually abusing other people Exposing private parts of your body in public, known as exhibitionism Watching people who are carrying out intimate acts, known as voyeurism Hayfever Stealing

5 Top 2. What kinds of discrimination are there? There are a number of 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 Victimisation Direct Discrimination Back Direct discrimination is where someone treats you less positively than other people because of your disability. To prove direct discrimination, you person need to show that they have been treated less favourably than a person in the same situation who does not have a disability. This person is known as a comparator. Example Louise has had bipolar disorder for all of her adult life. She tries to get a loan from a loan company, and tells them that she has a mental health condition. Without looking at Louise s credit rating, the loan company decides not to give Louise a loan because they think that people with bipolar disorder are unable to control money. The loan company continues to give loans to people in a similar position to Louise but who do not have bipolar disorder. This is direct discrimination. Indirect Discrimination Back This is where there is a rule, criteria or practice that applies to everyone but that disadvantages disabled people. A rule that disadvantages disabled people will be discriminatory unless the employer/service provider can show that it is a proportionate means of achieving a legitimate aim. We explain this in section 4, below.

6 Example Erica has anxiety and irritable bowel syndrome, which means that she needs regular toilet breaks. Her employer has a policy that staff are only allowed a total of three toilet breaks a day. Although this policy applies to all staff, it has a bigger effect on some disabled staff, including Erica, that is disproportionate when compared to non-disabled staff. This policy will be discriminatory unless her employer can justify how it is a proportionate means of achieving a legitimate aim. Discrimination Arising From Disability Back This is where an employer or service provider treats you unfairly because of something that is related to your disability. They cannot show that this is a proportionate means of achieving a legitimate aim. Example Roger has severe depression. He takes antidepressants which make him very tired and he has occasionally comes into work late. He explains this to his employer, but his employer thinks that this is unacceptable and dismisses Roger. This could be discrimination due to Roger s disability unless the employer can give good reasons for the discrimination. (This is discussed in the next section of the factsheet) It could also be direct discrimination because a mental impairment caused by taking medicine can be a disability. Failure to Make Reasonable Adjustments Back A service provider or employer may have to make changes for you if this makes it easier for you. This is called the duty to make reasonable adjustments. The current way of doing things at work or when you are using a service may make things much harder for you than people who are not disabled. If so, that service or employer has to make reasonable adjustments. It is a form of discrimination not to make reasonable adjustments for you, if a service provider or employer knows or should know that you are disabled. The Equality Act says that an adjustment can include: changing policies or procedures changing equipment,

7 changing the location, or providing aids such as extra support or equipment However, there is no set list of adjustments and 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 how practical it is to make the change. However, they cannot justify not making a reasonable adjustment just because it costs a lot. An organisation cannot charge you for the costs of an 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. There is no set list of what reasonable adjustments can be. At interview, reasonable adjustments could include changing the room or changing the way the interviewer asks the questions. At work, reasonable adjustments could include: allowing you extra time off work allowing flexible working changing your role offering counselling or mentoring. Talk to your employer about how your condition affects you and what would help you to overcome any problems. If the employer refuses to make an adjustment that you think it is reasonable for them to offer, you could consider taking action. See section 7 for further information on taking action. Example Billy works for a large supermarket chain. He has to drive to work everyday and in the winter he does not finish work until it is dark. Billy has Post Traumatic Stress Disorder (PTSD). He finds it very difficult to drive home in the dark as he gets very severe flashbacks of things that have happened in his past. Billy tells his manager, who knows about his mental health condition. His manager refuses to change his working hours in the winter so that he is able to drive home whilst it is still light outside. The supermarket is large and it would be easy for an earlier shift to be arranged. However,

8 his manager says he is being over-sensitive. This is likely to be a failure to provide a reasonable adjustment because the employer could change his hours with little difficultly and it would really help Billy. Harassment Back This is when people behave in a way you do not want because of your disability. If someone harasses you, they want to make you feel intimidated, degraded, humiliated or offended. Example Malia has paranoid schizophrenia and works in an office. The staff at the company call Malia schizo and draw and write abusive words and pictures on her desk. Malia tells her employer about this, who ignores the situation. Even though Malia s employer did not carry out the harassment, the company is still responsible for harassment carried out by its staff. Victimisation Back The Equality Act protects people who have made a complaint about being discriminated against. You should not be treated badly for trying to use your rights under the Act. Top 3. Can discrimination be justified? Some kinds of discrimination cannot be justified. For example, a service provider cannot justify direct discrimination against a disabled person. Indirect discrimination and discrimination arising from a disability can have an effect on a disabled person. However, a service provider or employer can justify this if it is a proportionate means of achieving a legitimate aim. If an employer or service provider can justify a rule or procedure in this way, it can still have a big impact on disabled people. However, the law says that these rules are fair and legal. This is sometimes called objective justification. What is a legitimate aim? The Equality Act does not say what a legitimate aim is, but this could be quite broad. Something is likely to be legitimate if it is fair and reasonable. Legitimate aims could include:

9 the health and safety of staff or people using a service the business needs of the service needing to make a profit. A legitimate aim must not be discriminatory. What does proportionate mean? Proportionate means that there must be a fair balance between the service or employer s needs and your rights or needs as a disabled person. When a service or employer is thinking about how their aims, they should try to reach it in a way that is suitable. They should also use the least discriminatory way of reaching the aim. 4 Example Rosa works for an organisation where all employees must work from 9am to 5pm. Rosa takes medication for depression which makes her sleepy. This makes it difficult for Rosa to get to work on time and she is sometimes late and gets told off. Rosa asks for different working hours, from 10am to 6pm, so that she can start and leave work later. Her employer says no. This could be indirect discrimination. However Rosa s employers say that this is a proportionate means of achieving a legitimate aim. They say that they cannot change her hours as there would be no security on site after 5pm, which means that Rosa s health and safety would be at risk. They also say that the business needs Rosa to be at work from 9am to 5pm as these are the organisation s business hours. They say there would be no work for her to do after 5pm. 4. How would a service provider or employer know that I am disabled? It s not possible to tell from looking at someone that they have a mental illness. So when you apply for a job or try to use a service, the person you are dealing with will is unlikely to tell that you have a disability. This means they probably will not know that they might need to make adjustments for you. Top Service providers On a day-to-day basis, you probably would not think to tell anyone about your mental illness when you are using services, such as shops. However, if you feel that you are having more problems compared to other people because of your mental illness, you can tell the service providers about your condition. If you tell them, the Equality Act protects you from discrimination.

10 Employers You may think that your employer needs to know about your mental illness. It is up to you whether or not to tell them. In most cases, the Equality Act stops an employer from asking questions about your health or disabilities before offering you a job. The employer does not have to make reasonable adjustments for you during the application process or at interview if they do not know you have a disability and how it affects you. Similarly, when you are in work, the employer does not have to make reasonable adjustments for you unless they they know or should know about your condition and the way it affects you. 5 The Work and mental illness factsheet has more information to help you decide whether or not to tell your employer about your mental illness. You can download it for free from Or call and ask for a copy to be sent to you. What if everyone at work finds out about my condition? If you tell your employer about your mental illness, they should keep this information as private as possible. However, your employer may need to tell some people at work about your mental health so you can have reasonable adjustments. For example, your line manager will probably need to know. Your employer should check with you before telling other people in your workplace If other staff bring up your mental health, say inappropriate things about it or do not speak to you at all because it, the Equality Act may protect you. You would be protected if this behaviour was direct discrimination, harassment or victimisation. 5. Can an employer ask me health questions before offering me a job? The Equality Act says that an employer should not normally ask you questions about your health or disability before they offer you a job. 6 This is meant to stop employers discriminating against you because of things they know about your health. An employer can ask you questions if they need to find out: Top Whether you need any reasonable adjustments for interview Whether you will be able to do something that is part of the job. Personal information for monitoring purposes Whether you could be part of an employer s scheme that favours disabled people to get a job there

11 Whether 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. So an employer should not normally ask you questions about your health when you are filling in an application form or going to a job interview. Once an employer offers you a job, they can ask you health-related questions. If you are asked health questions, it is up to you whether you answer them. It is important to try to find out why the employer is asking these questions when you are deciding whether or not to answer them. If you decide not to tell an employer about your mental illness, the employer could take disciplinary action later on, if you work in a job where you should have the employer about your mental illness. For example, teachers, nurses and doctors have to tell their employer about their mental illness because of the regulations which cover these professions. More information on these rules can be found in our factsheet on Work and Mental Illness. You can download it for free from or call and ask for a copy to be sent to you. 6. 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. Direct discrimination is where an employer or service provider treats you less well than someone else because of your link with a disabled person. This is called discrimination by association. Top If you a carer, the Equality Act also protects you in your own right from being treated unfairly because of your age, race, disability or any of the other protected characteristics. Example James is a carer for a man who has schizophrenia. James applies for a job and he tells them that he is a carer. The employer does not give James the job and another person, who is equally as qualified as James, gets the job instead. When James asks for reasons, the employer says that his caring responsibilities would have got in the way of work. This is direct discrimination by association with a disabled person. Top

12 7. How do I take action 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 you are being harassed at work, keep a diary of what people say, who said it and when. Trying 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 or writing them a letter. Remember to keep a note of any conversations or meetings you have. If you do try to sort out your problem informally, you might miss the time limit for taking legal action (see below). It is important to bear this in mind when you are deciding what to do and your next steps. Grievance procedure If this doesn t work, you could try raising your concerns through your employer s disputes procedure. This is called bringing a grievance. The Advisory Conciliation and Arbitration Service (ACAS) has produced a code of practice for how employers should handle complaints at work. If an employer or employee does not follow this code, an employment tribunal can reduce or increase an award of compensation by a quarter. Legal action You can take legal action to get an employment tribunal to look into your case. The tribunal is like a court. They are able to decide whether or not you were discriminated against and will sometimes award compensation. There is a strict time limit for asking the employment tribunal to look at your case. You have three months less one day. So if you are discriminated against on 13 th March, you will have until 12 th June to take action. The Government has produced a discrimination questionnaire. You can ask the person you think has discriminated against you to complete it. This will help you get evidence together before going to an employment tribunal. You can get a copy of the questionnaire from: 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. Normally, you have a strict time limit of six months less one day to do this. Bear this in mind if you try to sort out

13 the problem informally, as you may run out of time to take your problem to the county court. Can I get legal help with taking action in my discrimination case? If you are on a low income, you might be able to get legal aid to pay for specialist legal advice. You may also be able to get support at county court or an employment tribunal (this is called representation, when someone who is legally trained argues your case for you). Legal aid is available for discrimination from services and your employer. If you have problems with an employer, you can only get legal aid if there are discrimination issues. Legal aid does not cover other kinds of employment problems. Civil Legal Advice can give you details of lawyers who will help legal aid clients. You can contact them on (Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm). You can find out more about getting legal help in our How to get legal advice and assistance factsheet. You can download this for free at or call and ask for a copy. How much does it cost to take legal action? Employment The Employment Tribunal started charging people to take an employment problem to the tribunal from July You will have to pay two amounts of money. The first is to start your claim and the second is for the hearing. The prices vary, depending on how complicated your claim is and how many issues you want to raise. For discrimination claims fees begin at 250 for starting the claim, and 950 for the hearing. 7 If you cannot afford these fees, the tribunal can say you do not have to pay. This is known as fee remission. You would normally need to show that you cannot afford to pay the fees. A legal adviser should be able to help you apply for fee remission. 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.

14 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 and you should always try to make sure that you take action within the time limits. Also, if an employer or service provider has discriminated against you over a period of time, it s possible the time limit could start from the last time you were discriminated against. Generally though, the time limit will start from the date of each separate act of discrimination. To be safe, it is best to talk to a specialist as soon as you can to make sure you don t miss a time limit. Top 8. The Equality Duty The Equality Act 2010 means that public bodies, such as the NHS, Local Authority and government departments, have to take steps to: Stop discrimination, harassment and victimisation. Promote equality of opportunity between people who share a characteristic (such as disability) and those who do not. Promote good relations between people who share a characteristic (such as a disability) and those who do not. Private organisations that are doing work for public bodies also have to do this. For example if a private company is running a day care centre for the local council. Courts can enforce the Equality Duty. To make sure that there is equal treatment and equal access to services between disabled people and non-disabled people, public organisations must: Remove or minimise disadvantages that disabled people have Take steps to meet the needs of people with disabilities Encourage people with disabilities to take part in public life or in other activities that they do not normally take part in Also, to promote good relations between disabled people and people who do not have a disability, the public organisation must try to tackle prejudice and increase understanding of disability. Top

15 Please note This information only applies to people in England. We have made every effort to make sure that this information is up-to-date and correct, but we cannot guarantee this. The examples in the text are not legal cases and they are just to help your understanding of the law. A court or tribunal could interpret the law in a different way to our examples in this factsheet. Equality and Human Rights Commission The Commission looks at the way the Equality Act 2010 is used. There is a lot of useful information about discrimination and the Equality Act on their website. Equality Advisory and Support Service (EASS) EASS can give practical advice on the Equality Act 2010 and discrimination. Telephone: , Textphone: (Monday to Friday 9am to 8pm, Saturday 10am to 2pm) Address: FREEPOST Equality Advisory Support Service FPN Website: 1 Equality Act 2010 s6 2 Equality Act 2010 schedule 1 paragraph 5 3 Boyle v SCA Packaging Ltd [2009] (Although the Equality Act was not in force at this time and this case was applied to the Disability Discrimination Act 1995, this case would still appear to apply) 4 EHRC Employment Statutory Code of Practice (2011), para Equality Act 2010 Schedule 8 paragraph 20 6 Section 60 is more specific than this and says that you can be asked questions once you have been offered a job or once you have been placed in a group of people who could potentially be offered work (such as casual or bank workers) 7

16 Rethink Mental Illness 2013 Last Rethink updated Mental October Illness Next Last updated October November Version Next update 2 November 2015 This factsheet is available in large print. Last updated 01/10/2010

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