The law
The main areas of legislation that relate to mental well-being in the workplace are:
The Health and Safety at Work Act 1974
This Act imposes a duty on every employer to ensure, as far as reasonably practicable, the health, safety and welfare at work of all their employees. This includes mental health.More information can be found on the HSE's website:
www.hse.gov.uk/legislation/hswa.htm
Human Rights Act 1998 (HRA)
Information about the Human Rights Act 1998 can be found on the Ministry of Justice's website.Management of Health and Safety at Work Regulations (1999)
The Management of Health and Safety at Work Regulations imposes a duty on employers to make a suitable and sufficient assessment of the risks to health and safety of employees and others affected by their work. The purpose of the risk assessment is to help the employer to determine what measures should be taken to comply with this duty under the relevant statutory provisions. This may include psychological risks and putting in place preventative steps where a risk is known.Disability Discrimination Act 1995 & 2005 (DDA)
The 1995 and 2005 Acts can be downloaded from the Directgov website.Disability is not always obvious. The Disability Discrimination Act (DDA) generally defines a person as disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities :
- ‘Normal’ means things that people do on a regular or daily basis, such as reading, writing, using the telephone, having a conversation and travelling by public transport.
- ‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.
- ‘Substantial’ means not minor or trivial.
The key thing is not the impairment but its effect. Some people don’t realise that impairments such as migraines, dyslexia, asthma and back pain can count as a disability if the adverse effect on the individual is substantial and long-term. Some conditions automatically count as disabilities for the purposes of the DDA, from the point at which an individual first has them – these are cancer, HIV and multiple sclerosis (MS).
Your local Jobcentre Plus or the Equality and Human Rights Commission (EHRC) can tell you more. The EHRC has advice on what counts as a disability according to the law.
There are some special provisions, for example:
- If your impairment has substantially affected your ability to carry out normal day-to-day activities, but doesn't any more, it will still be counted as having that effect if it is likely to do so again
- if you have a progressive condition, and it will substantially affect your ability to carry out normal day-to-day activities in the future, you will be regarded as having an impairment which has a substantial adverse effect from the moment the condition has some effect on your ability to carry out normal day to day activities.
- if you have been diagnosed as having cancer, HIV infection or multiple sclerosis you will automatically be considered as ‘disabled’.
- if you are registered as blind or partially sighted or certified as blind or partially sighted by a consultant ophthalmologist, you willl automatically be considered as “disabled”.
- people who have had a disability in the past but are no longer disabled are covered by certain parts of the DDA.
What are "normal day-to-day activities"?
At least one of these areas must be substantially affected:- mobility
- manual dexterity
- physical co-ordination
- continence
- ability to lift, carry or move everyday objects
- speech, hearing or eyesight
- memory or ability to concentrate
- this has an adverse effect on your ability to carry out normal day-to-day activities
- the adverse effect is substantial
- the adverse effect is long-term (meaning it has lasted for 12 months, or is likely to last for more than 12 months or for the rest of your life).
Treating disabled people fairly – Avoiding discrimination
Employers must treat job-seekers and disabled employees fairly to avoid:- disability discrimination, of which there are three types
- victimisation
- harassment
The three types of unlawful discrimination are:
- Direct discrimination
- Failure to make a reasonable adjustment
- Disability-related discrimination
Direct discrimination
This cannot be justified and occurs when:- a disabled person is treated less favourably than a non-disabled person whose relevant circumstances are the same or not materially different
- the treatment is on grounds of disability.
Failure to make a reasonable adjustment
This cannot be justified and occurs when an employer fails to make a reasonable adjustment for a disabled person. See the section on page 20 of the Line Managers' Resource for some examples of reasonable adjustments to consider.Disability-related discrimination
A disabled person is treated less favourably for a disability-related reason and the treatment cannot be justified. For example, treating someone differently because they have a guide dog.Victimisation
Victimisation is where someone is treated less favourably because, for instance, they have made a complaint at work or used their legal rights or have supported someone to do this.For example, a colleague of a disabled employee attends a Tribunal hearing to give evidence, in good faith, to support a disability discrimination claim. After the hearing, the employer brands the colleague 'a troublemaker' for giving evidence against the employer and withholds his bonus . This is likely to be victimisation.
Harassment
Harassment is any form of unwanted and unwelcome behaviour that has the purpose or effect of:- violating the disabled person's dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
