Examples of mental health discrimination at work

Mental health issues in the workplace have been on the increase for some years and awareness of the impact they can have on both employers and employees is growing.

However, there are still many cases where your employer’s poor treatment of you because of your mental health problems, is unacceptable. It often amounts to a breach of their ‘duty of care’ towards you and also to disability discrimination under the Equality Act 2010.

The five examples presented here are based on questions and scenarios from employees who have been discriminated against at work because of their mental health issues. The answers are provided by our employment lawyers.

The first two are from employees dealing with stress and the remainder from individuals with depression.

See also our other guides on Mental health and discrimination at work and Mental health work absence and dismissal.

If you’d like to know more about other aspects of discrimination in the workplace, have a look at our overview guide to Discrimination.

1. Can I ask my employer for relocation as a reasonable adjustment for stress?

Employee’s case

A few years ago, I was the victim of an assault and was involved in court proceedings and had to acquire a restraining order and move house. I was diagnosed with PTSD as a result which I still have to date and the prognosis says I am disabled but may make a full recovery based on completion of CBT counselling.

Part of my PTSD triggers involve places – the person who attacked me was arrested a second time loitering outside my workplace and was arrested and charged for breaking the restraining order. I have moved out of the town to a new town in order to stop the constant stress of being in the area.

I have asked my employer (a company of 20 people) if I can move to a serviced office in the town I live in (its 20 mins away from the one now ….everyone works from home apart from me and a coworker) but was told no, that my contract states that I work in the office. Was it a reasonable adjustment to ask for this?

Lawyer’s answer

Because you are disabled, your employer has a duty under the Equality Act 2010 to make reasonable adjustments. There is no definition of a reasonable adjustment because it depends on the circumstances.

If your employer is a huge company then there are lots of things they could do, like move you to a different location where they already have an office. However, because it’s quite a small company they wouldn’t be expected to do this.

It is interesting that all your colleagues work from home though. Why won’t they allow you to work from home? Unless there are specific practical reasons, then their refusal could be a failure to make reasonable adjustments.

This would entitle you to issue an employment tribunal claim, which you can even do for discrimination claims whilst still employed. In practice, it may be worth putting your concerns in writing to them first. You would have 3 months less one day to make a claim from the date of the failure to make the adjustments.

2. How much should I get after 6 months off with stress and 12 years’ service?

Employee’s case

I have been off sick from work with stress for 6 months now, following bullying from a member of staff. I raised a grievance against her which was not upheld.

HR has offered me a settlement agreement as my sick pay has now ceased. Six people within my office have recently been made redundant but when I asked HR if I could be considered I was turned down and told “your job is still there and therefore you are not eligible for redundancy”

I have worked there full-time for 12 and a half years. Today I was offered 1 month’s pay in lieu of notice, 4 weeks pay as an ex gratia payment and 11 days accrued holiday. After all the years I have worked there I thought this was quite mean.

I work for a multi-billion pound company and until recently loved my job. The stress has caused me other health problems too and I really don’t feel well enough to return to work and therefore would rather take a decent pay-off. Please could you advise me if I am being unreasonable?

Lawyer’s answer

This sounds like a tricky case and we’d need more information, but if you’ve been off sick for so long it’s hard to claim constructive dismissal. And now your sick pay has run out you have no reason to stay there. On the other hand, how can your job not be redundant unless someone else has been doing it?

We’d need to know more about this. You need an angle for a decent deal – maybe whistleblowing or discrimination – but as it is, you may just have to take the money on offer.

3. Off sick with depression and not wanted back at work. What should I do?

Employee’s case

I work as a Manager for a fast-growing company and have been on sick leave for 10 weeks due to anxiety and depression. My condition was created due to my elderly father who lives alone becoming a strain (emotional as opposed to providing assistance) and also my trying to run a very busy team and needing more resourcing which my Manager was resistant to and therefore the team and myself were extremely overworked. I approached my Manager a few times regarding my stress but was not supported.

Since I have been on sick leave considerable resourcing has been put into my team. I now feel recovered and after a great deal of thought decided that a life change would be beneficial to me although I want to remain at the company and therefore proposed to them that I step down to a role with less responsibility.

There are two positions advertised internally: a Supervisor and a Clerk within my team. I was called to a meeting and told that even though the Supervisor is advertised it would not be available to me as it was intended to go to a lady who is currently my assistant so the only role available was Clerk.

I was then asked if I was going to apply for that role and I said I was confused that the other role would not be available to me but yes I would. I was then put through a long meeting where I was feeling very pressurised to resign. It was pointed out repeatedly that the salary would be much less and the role would be much less ‘honorouble’.

My manager went over several times how nervous they are that at even such a junior role I would suffer a relapse. I am on SSP only and was asked if that was not the reason I was applying as was it not financially driven.

She then turned attention to my Dad and asked if the situation was resolved and was he in a nursing home? and when I said no, she then said that that stress was still there for me.

I then terminated the meeting and said I believed they were discriminating against me on the grounds of mental health and insisted that they provide me with a copy of the transcript before I left the building.

When they provided the handwritten transcript they had written  ‘without prejudice’ on it. I am now not sure if I want to work at this company as they clearly do not want me there.

Lawyer’s answer

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This is a very unfortunate situation as even if you wanted to continue working at the company, it seems as though they don’t want you to. It sounds like they are failing to make reasonable adjustments, so the question is – is your condition considered to be a disability?

It would need to be over 12 months in duration for it legally to be a disability. If so then you have a potential claim for discrimination and therefore a fair negotiating position. If not then you are left with a claim for constructive dismissal, which could still be quite strong.

Remember you normally need at least 2 years’ continuous service for a constructive dismissal claim. Good luck!

4. I am a teacher with depression. Should I accept the settlement offered?

Employee’s case

I am a secondary school teacher and have worked for my current school for fourteen years. Last November I was signed off with severe depression and anxiety. After six months I was invited to a review meeting. The agenda was outlined and it all seemed pretty standard.

The meeting lasted over an hour where I was repeatedly asked when I would be returning. The headteacher was very aggressive and told me how much my absence had cost the school. She then told me how accommodating the school had been during the time before I was sick, basically, she had a prepared monologue defending the school’s record.

The meeting seems to have been called to find out whether or not I blamed them for my illness. The experience actually worsened my condition.

They then sent me to a psychiatrist who confirmed my GP’s diagnosis and diagnosed my condition as work-related. He outlined how I should be treated, which turns out to be quite expensive (not available on the NHS). However, he wasn’t willing to offer any guarantees that the treatment would be successful in a time acceptable to the school.

The school decided not to fund the treatment and after a year have decided to terminate my employment. Their behaviour towards me from start to finish has been bad, although it seems that they have just about managed to follow the procedures correctly.

They offered me the choice of going down the capability [or performance] route or accepting a settlement agreement with an agreed reference. The school’s HR representative and my Union started ‘negotiations’. The school’s HR rep was very pushy and within a week had increased their initial offer of £8,000 to £10,000 but told us that if we didn’t accept it there and then the offer would be off of the table.

Three weeks have passed, very little has happened and I feel very bitter about the experience. My notice period is three months, and my gross salary for that period is £10,000, so essentially they are offering me my gross pay in lieu of notice to keep my mouth shut. I’m wondering if I should refuse to sign until they substantially increase the offer.

Lawyer’s answer

One factor is how far down the route of dismissing you they have got. It’s also difficult to prove that their conduct has caused you stress, although the aggression shown by the head does sound like harassment. Can you get any witnesses for that? Have they made any reasonable adjustments for you in view of your illness?

It seems that they are offering you hardly anything (just the tax saving on your contractual notice) so it would probably be worth holding out for more. Whilst still employed you can be a thorn in their side so they should be willing to pay more to get rid of you.

Unfortunately, unions are often not the best commercial negotiators so you should probably instruct specialist lawyers to conduct the negotiation for you.

We’d probably ask your employer for at least 1 or 2 months’ pay tax-free on top of the current offer. Our fee would be modest and be based on a small percentage of any increase that we were successful in obtaining for you.

5. I’m off sick with depression and my boss wants me to resign. Should I?

Employee’s case

I am off sick with depression and have asked my boss to pay me off. He thinks nothing is wrong with me and says no, he wants me to resign instead. Please advise.

Lawyer’s answer

If you are ill that is generally not a reason for your employer to pay you to leave. Usually, if you can’t perform your job anymore, they are entitled to dismiss you for performance, but only after making ‘reasonable adjustments’, which means trying to accommodate your illness (for example allowing you some extra days off, even if they are unpaid).

Of course, if they discriminate against you directly for example by trying to make your life difficult, then that is different, and you would have a potential employment tribunal claim (and therefore a basis to request a settlement agreement).

When you say your boss thinks that nothing is wrong with you – what has he/she said? Have you shown them a doctor’s letter? If they are saying that there is nothing wrong with you, then of course they are also failing to make reasonable adjustments. But if you show them a doctor’s letter, then there is no reason why they shouldn’t believe you.

 

Next steps

If you are being discriminated against at work because of your mental health condition, then contact us at Monaco Solicitors to see if we can help you with your case.

We are specialist employment solicitors who represent employees only. We have plenty of successful experience representing people who have been discriminated against for mental health issues. We offer you a friendly, professional and highly confidential welcome.

Get in touch in one of the following ways:

• Via this link
• By phone on 020 7717 5259
• Email: communications@monacosolicitors.co.uk