Last week was the National Mental Health Action week and many businesses will be aware that mental health can become an employment law issue.

The 1995 Disability Discrimination Act specifically protects people suffering from a mental illness from discrimination in employment. The Act protects individuals who are suffering from a long term (12 months) clinically well recognised mental illness which has a substantial effect on their ability to carry out normal day to day activities. The Act also covers individuals who have suffered from a mental illness in the past but who have now made a full recovery.

The protection from discrimination applies both to individuals who apply for work and to individuals already employed who begin to suffer from a mental illness. Although the definition of disability is generally considered to exclude employees who are suffering from generalised stress, it will often include individuals who are suffering from clinical depression and related disorders.

The employer is required to make reasonable adjustments to the working environment in order to enable an employee suffering from a mental illness to take up employment or to continue in employment. These adjustments might include a reduction in the working hours or a change in job duties. In practical terms, it is always best for the employer to meet up with the employee and discuss with them whether it would be helpful to make adjustments.

Lemon & Co Solicitors have often been involved in both bringing claims for disability discrimination on behalf of individuals who have suffered from a mental illness and defending such claims on behalf of employers. In our experience, the most difficult claims to defend arise where an individual has been rejected for employment on the basis of mentioning a past mental illness on their application form.

The strongest defence for an employer in any discrimination claim is that they appointed the best person for the job on the basis of relevant experience, skills and qualifications (and that the medical conditions of the various applicants were simply not a consideration). The position of the employer is strengthened if they have an equal opportunities policy under which individual applicants are assessed against a person specification setting out required skills and qualifications. The employer who relies upon a more impressionistic informal approach and rejects an employee with a past history of mental illness faces a significant risk of a claim for compensation for disability discrimination.

For further information and advice on disability discrimination, mental illness and equal opportunities policies, contact Paul Archer or Dawn Gallie at Lemon & Co Solicitors on 01793 527141.