Alan Delaney: Tackling mental health discrimination

The challenge of inadvertent mental health discrimination 'should not be underestimated', says Alan Delaney of law firm Maclay Murray & Spens. Picture: Jane Barlow

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General election promises from the main political parties to tackle discrimination against those with mental health conditions in the workplace show that a rare instance of political agreement exists in this area.

It also provides a timely reminder to employers that it is not only physical disabilities that can lead to inadvertent discrimination and potential tribunal claims. The challenge should not be underestimated.

Mental illness is reported to be the largest single cause of disability in the UK and the leading cause of lost production, recruitment and sickness absence. It is estimated to cost UK employers an average of £1,035 per employee.

Yet one recent survey found that 49 per cent of employees would feel uncomfortable talking to their employer about their mental health. That percentage is unlikely to be lower when it comes to potential new recruits.

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Provisions in the Equality Act 2010 restrict the ability of employers to ask health-related questions prior to a job offer being made, so great care must be taken to avoid discrimination in this respect. Asking such questions at the recruitment stage is unlawful unless an exemption applies.

One recent case involved a female law graduate seeking a legal traineeship with the Government Legal Service, who faced a “fiendishly competitive recruitment process”. She requested that a multiple choice “situational judgment test” be modified on account of her Asperger’s syndrome, to allow her to provide short narrative answers instead.

Her request was refused and she failed the test. She was found to have been discriminated against on the basis of a failure to make reasonable adjustments and that the test was indirectly discriminatory.

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Once a job offer is to be made, this can be conditional on the applicant passing a pre-employment medical assessment, but it is vital to ensure that any such assessments go no further than necessary for the role.

The current equality legislation does not mean employers need to recruit individuals who are clearly unable to perform the role. However, it is critical for businesses to avoid assumptions, obtain medical evidence and consider reasonable adjustments to avoid potential discrimination.

• Alan Delaney is a director in the employment, pensions and immigrations team at law firm Maclay Murray & Spens

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