In this guest blog, solicitor Kiran Daurka says that recent employment rights reforms could adversely impact on people with mental health problems.
As an employment lawyer who acts on behalf of individuals who have been subjected to unlawful discrimination, I regularly encounter the stigma that continues to surround mental health conditions. A recent study from anti-mental health stigma campaign Time to Change found that 9 in 10 young people with a mental health diagnosis receive negative reactions because of it. While racism, sexism and homophobia are no longer publicly acceptable, this study suggests that discrimination on the grounds of mental health remains mainstream.
However, there is reason for optimism from a legal perspective; a Private Member’s Bill that removes outdated obstacles for individuals who have been detained under the Mental Health Act is close to becoming law and has support from all three main parties. It is unacceptable that the law still prohibits people from carrying out jury service, being appointed as a statutory company director, serving as a school governor or being elected as an MP because they have been detained under the Mental Health Act at some point in their lives.
Gavin Barwell’s bill, which has reached the committee stage in the House of Commons, will help to reintegrate the most excluded individuals into society. In doing it so will mark an important step in challenging the stigma and untruths surrounding mental health conditions.
Another vital area in the fight against discrimination is employment. Many employees are reluctant to disclose a mental health condition to an employer, fearing action might be taken against them. But without disclosure of a mental health condition, employees are not necessarily protected by equality legislation; employers can argue that without knowledge of the condition they could not have been expected to make reasonable adjustments or provide adequate support. I have advised in numerous cases where employers have made rash or unjustifiable decisions without a proper understanding of the condition or the support that is available to help the individual.
Despite gradual progress in reforming mental health legislation, the Government’s recent reforms of employment rights will directly impact upon employees with mental health conditions. The Government has recently changed the law so that employees must have been employed for at least two years in order to claim for unfair dismissal. Given that people with mental health conditions are one of the least employed groups – recent figures suggest that only 27% of working age adults in England with a mental health condition are in employment – those trying to enter the workforce are particularly vulnerable, with little protection against unfair dismissal where discrimination cannot be proven.
Further to this, there are proposals to introduce fees to employment tribunals from next year, which will make it harder and more expensive to access justice. In particular, vulnerable groups, such as those with mental health conditions, who are more likely to face discrimination at work – and possibly dismissal – will find it increasingly difficult to bring claims if required to pay a fee before a claim can be heard.
This is a clear erosion of hard-fought employment rights, and should be a concern for everyone. But it is a particular issue for groups who are already marginalised and find it difficult to obtain and maintain employment.
Employers should note that 1 in 4 people will experience some sort of mental health issue during their lives, so it is in their interest to fight against discrimination. Education and discussion around mental health conditions can only help to alleviate the discomfort that this topic still brings. Further, if the Government wants to get people who can work back into employment it needs to ensure that there is adequate protection in place to keep them there.
Kiran Daurka is a solicitor at the London office of Slater & Gordon. She advises on discrimination issues, and has particular expertise in disability discrimination and mental health issues in the workplace. She has acted for numerous clients with mental health conditions, helping them to bring claims to employment tribunals and appeals tribunals.