How would scrapping the 12-month mental health requirement affect employers?

Proposed changes by the Conservatives could see people with shorter-term mental health issues protected by disability discrimination laws. Yvonne Gallagher, partner at law firm Harbottle & Lewis, looks at the potential implications for employers and HR professionals.

Last week, health secretary Jeremy Hunt said that a new Conservative Government would remove the requirement that, to qualify for employment protection against discrimination on grounds of a mental health issue, an individual must have had the condition for a period of more than 12 months. Individuals would therefore enjoy immediate protection under the Equality Act 2010.

This proposal introduces a number of practical issues for employers, particularly in dealing with staff who cite mental health issues in the context of absence or performance management programmes.

Current mental health discrimination law

At present, in order for a condition to attract protection under the Equality Act as a disability, it must be a physical or mental impairment which has a substantial and long-term adverse effect on an individual's ability to carry out normal day-to-day activities.

It is clear, therefore, that mental health issues are already capable of amounting to a disability and so attracting the protection given to employees and workers by the Equality Act. The key change relates to the proposed removal of the requirement that an employee's mental impairment has a "long-term" effect on the individual's ability.

The Equality Act provides that a condition will be regarded as being "long term" if it has lasted or is likely to last for at least 12 months or for the remainder of the life of the person affected.

There has never been any doubt that long-term mental health conditions such as schizophrenia, autism and Asperger syndrome and long-term or recurrent clinical depression will amount to disability for the purposes of the Act.

However, short-term mental health issues, including conditions for which individuals are commonly signed off from work by GPs, such as stress, anxiety, reactive depression and depression are at present not covered.

These conditions would appear to fall within the definition of a mental impairment and if they can be shown to impact on the ability to perform day-to-day activities, as they frequently will, they will be treated as disabilities for the purpose of the Act.

No qualifying period of service is required and so employees will be protected from day one of their employment. This will therefore cover employees during probationary periods.

Recognition of a condition as a disability brings with it an obligation not to treat individuals less favourably because of their disability and a positive obligation to make reasonable adjustments to work practices to avoid substantial disadvantage to a person with a disability when compared with persons who do not have the condition.

The impact on employers

Given the prevalence of short-term mental health issues and the frequency with which employers encounter a situation in which an employee is signed off sick citing stress or similar reasons, whether related to issues in the workplace or outside, the Conservatives' proposal represents a significant extension of protection under the Act. It removes a defence commonly relied on by employers, that a condition is short term only and therefore is not protected.

It is not unusual for individuals who are undergoing a disciplinary or performance management process or are otherwise in dispute with their employers to find the events genuinely stressful such that they are unable to continue to attend work.

However, it is possible to justify unfavourable treatment of an individual because of something arising from his or her disability if the employer can show that the treatment complained of was a proportionate means of achieving a legitimate aim.

In particular employers may seek to argue that the cause of the stress is the unresolved situation at work and that it is in the interests of all to proceed promptly with ongoing disciplinary or performance improvement plan.

Whether employment tribunals will take a different approach to dealing with claims arising out of short-term illness, particularly where the stress caused is that arising from a disciplinary or management procedure itself, remains to be seen.

But the concern for employers will be that extension of this legislation will mean that they will have to engage in lengthier investigation and management processes for employees who have not accrued the two years' service necessary to bring an unfair dismissal claim and so will reach for Equality Act protection. Employers should await further details with interest.