5 FAQs About Mental Health in the Workplace
10 October marks World Mental Health Day.
The last few years have seen an increase in awareness around mental health conditions, particularly in the workplace.
Our employment solicitors are often asked about whether mental health issues in relation to workplace disability discrimination cases.
We’ve produced this guide to try and answer some of the most frequently asked questions.
5 FAQs About Mental Health in the Workplace
1. What rights do employees have in the workplace when it comes to their mental health?
If employees are unable to attend work because they are suffering with mental health issues, they have a right to be absent from work. When taking time off work employees should always ensure they comply with their employer’s sickness and absence policy, as far as reasonably practicable. If an employee’s mental health is such that they would be deemed ‘disabled’ under the Equality Act 20210 (“the Act”), they also have protection from discrimination under the Act.
2. Can an employee insist on continuing to work from home on the grounds of their mental health?
It is unlikely that any employee can ‘insist’ on working from home but in most situations an employer would be expected to attempt to consider and possibly accommodate an employee’s wish to work from home on mental health grounds.
If an employee’s mental health would be deemed ‘disabled’ under the Equality Act 2010 (“the Act”), there may be a duty on the employer to make reasonable adjustments to accommodate the employee and such an adjustment could be homeworking. The employee would have protection from other forms of discrimination under the Act.
3. What counts as discrimination in the workplace?
There are various specific types of discrimination which are set out in the Act. Broadly speaking, employees have a right to not be treated less favourably or harassed or victimised at work because of or related to their disability or their association with a disabled individual.
Employees are protected from discriminatory comments, unfavourable treatment as a result of complaining about discrimination and less favourable treatment.
4. What can an employee do if they feel they have been discriminated against because of their mental health at work?
If an employee feels they have been discriminated against because of their mental health at work, then there are a few options:
Option 1 – They can informally tell their manager (or someone more senior in the company if their manager is the problem) about the discrimination and ask for it to stop.
Option 2 – If it cannot be resolved informally, an employee can raise a formal grievance about the discrimination. An employer is then obliged to investigate the problem and decide whether it has occurred and if so, what should be done about it.
Option 3 – If internal procedures do not resolve the issue, a claim can possibly be pursued in the Employment Tribunal.
5. Are employees entitled to sick pay and time off work for mental health issues?
Yes, if employees are unable to attend work because of their mental health issues, they can self-certify for up to 7 days because of absence.
Subject to meeting the qualifying criteria, they will be entitled to statutory sick pay (“SSP) for 28 weeks from the fourth day in a row they are absent. They may also have a contractual entitlement to enhanced company sick pay with their employer.
Please note, the above information is for information purposes only and not intended to be a substitute for legal advice.
To contact our employment team regarding mental health discrimination, please call 033 3344 9603 or email [email protected].
