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  • Foreword
  • Introduction
  • How to use this resource
  • What do we mean?
  • What the law says
  • The recruitment process
  • Promoting well-being
  • Talking at an early stage
  • Issues to raise
  • Keeping in touch
  • Supporting an employee who is off sick
  • Returning to work
  • Examples of reasonable adjustments
  • Managing an ongoing illness while at work
• Working it Out
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• About Shift

What the law says

The main areas of legislation that relate to mental well-being in the workplace are:

• The Health and Safety at Work Act 1974 (HASWA)
  
• Disability Discrimination Act 1995 & 2005 (DDA)
  
• Human Rights Act 1998 (HRA), and
  
• Management of Health and Safety at Work Regulations (1999)
  
• Equality Act (pending)

For more information about these pieces of legislation, see our section on the law.

What is the Disability Discrimination Act?

The Disability Discrimination Act (DDA) is an act of Parliament that guarantees the rights of people with disabilities to fair treatment.

Disability is defined by the DDA as: “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”.

To obtain protection under the DDA a person has to demonstrate that their impairment;

• is ‘substantial’, which means that it is more than minor or trivial
  
• is ‘long-term’, which means that the disability has lasted or is likely to last for at least 12 months (there are special rules covering recurring or fluctuating conditions)
  
• affects ‘normal day-to-day activities’ like eating, washing, walking and going shopping
  
• affects one of the ‘capacities’ listed in the Act which include mobility, manual dexterity, physical co-ordination, perception of the risk of physical danger, speech, hearing, seeing and memory including the ability to learn, concentrate or understand.

If a person is being treated with medication to control or alleviate their impairment then this is disregarded and the person is still treated as being disabled for the purposes of the DDA.

Amendments to the DDA introduced in December 2005 mean that mental illness no longer has to be a clinically well-recognised condition for it to be covered by the Act. This means that potentially any mental health condition could be covered.

It does however still need to meet the legal definition of a disability in order for it to be covered by the DDA. It is a court that decides this by considering the effects of the impairment on the person in terms of whether it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Unless you go to court it will therefore be very difficult to assess whether or not someone is definitely covered by the Act. For this reason it would be best to adopt a best practice approach. This would mean treating an individual who you believe or know to have a mental health condition, regardless of what it is, as if they are covered by the DDA.

Your responsibilities

The DDA covers the whole employment process including recruitment, the period during which a person is employed, the terms and conditions of employment, promotion, redundancy and termination of employment.

Under the DDA an employer is deemed to discriminate against a disabled employee, or potential employee if;

• for a reason which relates to that person’s disability, he/she treats that person less favourably than he/she treats or would treat others to whom the reason does not or would not apply and cannot show that the treatment was justified
  
  or
  
  
• fails to comply with a duty to make reasonable adjustments

For more information on reasonable adjustments, see Returning to work and reasonable adjustments.
For more information on workplace legislation, see our section on the law

Next page: The recruitment process