A mental health condition is considered a disability if it has a long-term effect on your normal day to-day activity, and this is defined under the Equality Act 2010.
The condition is ‘long term’ if it lasts, or is likely to last, 12 months.
‘Normal day-to-day activity’ is defined as something the individual does regularly in a normal day. This includes things like using a computer, working set times or interacting with people.
Currently, the law considers the effects of an impairment on the individual. For example, someone with a mild form of depression with minor effects may not be covered. However, someone with severe depression with significant effects on their daily life is likely to be considered as having a disability.
2.0 Where Does the Equality Act 2010 Apply?
The Equality Act 2010 applies in England, Wales, and Scotland.
It does not apply in Northern Ireland, where individuals are protected by the Disability Discrimination Act 1995.
3.0 Definition of Disability under the Equality Act 2010
An individual is classed as disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.
In order to be protected by the Act, a person must have an impairment that meets the Act’s definition of disability, or be able to establish that any less favourable treatment or harassment is because of another person’s disability or because of a perceived disability.
4.0 Factors to Consider in Determining Disability
Factors to consider include:
- The individual must have an impairment that is either physical or mental;
- The impairment must have adverse effects which are substantial;
- The substantial adverse effects must be long-term; and
- The long-term substantial adverse effects must be effects on normal day-to-day activities.
4.1 What Does Substantial and Long-term Mean?
- ‘Substantial’ is more than minor or trivial, for example, it takes much longer than it usually would to complete a daily task like getting dressed.
- ‘Long-term’ means 12 months or more, for example, a breathing condition that develops as a result of a lung infection.
4.2 What is an Impairment?
With regards to disability, an impairment refers to an individual’s ability to carry out normal day-to-day activities and, importantly, the effect that an impairment has on this ability.
A disability can arise from a wide range of impairments which can be:
- Sensory impairments, such as those affecting sight or hearing.
- Impairments with fluctuating or recurring effects such as rheumatoid arthritis, myalgic encephalitis (ME), chronic fatigue syndrome (CFS), fibromyalgia, depression and epilepsy.
- Progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia;
- Auto-immune conditions such as systemic lupus erythematosis (SLE).
- Organ specific, including respiratory conditions, such as asthma, and cardiovascular diseases, including thrombosis, stroke and heart disease.
- Developmental, such as autistic spectrum disorders (ASD), dyslexia and dyspraxia;
- Learning disabilities.
- With symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions;
- Eating disorders;
- Bipolar affective disorders;
- Obsessive compulsive disorders (OCD);
- Personality disorders;
- Post-traumatic stress disorder (PTSD); and
- Some self-harming behaviour.
- Mental illnesses, such as depression and schizophrenia.
- Produced by injury to the body, including to the brain.
What it is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition. For example, addiction to, or dependency on, alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed) are specifically excluded from the Equality Act 2010 – although any accompanying impairments maybe protected.
5.0 What about Recurring or Fluctuating Conditions?
There are special rules about recurring or fluctuating conditions (ODI, 2011, p.29), for example “…mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list.”
Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant.
6.0 What about Progressive Conditions?
A progressive condition is one that gets worse over time, and individuals with progressive conditions can be classed as disabled.
Examples of progressive conditions include various types of dementia.
Medical prognosis of the likely impact of the condition is the normal route to establishing protection under this provision. Although the effect need not be continuous and need not be substantial, the individual will still need to demonstrate that the impairment meets the long-term condition of the definition.
7.0 Employers & Disability
If an individual’s mental health condition means they are disabled they can get support at work from their employer. Two things to note:
- The individual’s employer cannot discriminate against them because of their disability – they are protected by the Equality Act 2010; and
- The employer must also keep the individual’s job open for them, and cannot put pressure on the individual to resign just because they have become disabled.
7.1 Reasonable Adjustments
The individual’s employer must make ‘reasonable adjustments’ for them so that they are not disadvantaged compared to non-disabled people, with examples including:
- A phased return to work, for example working flexible hours or part-time;
- Time off for medical treatment or counselling;
- Giving another employee tasks the individual cannot easily do; and/or
- Providing practical aids and technical equipment for the individual.
7.2 Time off from Work
If the individual is an employee and cannot work because of their disability, they may be able to get Statutory Sick Pay (SSP), although some employers have their own sick pay scheme.
If the individual still cannot work after 28 weeks, or they cannot get SSP, they can apply for Universal Credit (UC) or Employment and Support Allowance (ESA).
It is important to note that time off from work should not be recorded as an ‘absence from work’ if the individual is waiting for their employer to put reasonable adjustments in place.
7.3 Dismissals and Redundancy
The individual’s employer cannot dismiss them just because they have become disabled.
However, the individual can be dismissed if their disability means they cannot do their job even with reasonable adjustments.
An individual cannot be selected for redundancy just because they are disabled.
8.0 Disability Benefits
As well as having rights to protection from discrimination if the individual becomes disabled, they may also be entitled to certain benefits. The main disability and sickness benefits include:
- Disability Living Allowance (DLA) or Personal Independence Payment (PIP);
- Attendance Allowance; and/or
- Employment and Support Allowance (ESA).
DLA is paid on top of income support, ESA, and other benefits. DLA does not reduce an individual’s other benefits and, in some cases getting DLA, can actually increase the amount the individual receives in other benefits. An individual can receive DLA if they are in or out of work.
What the individual is entitled to will depend on their circumstances. The individual might also be able to get:
- Certain types of equipment or have adaptations made to their home without paying VAT;
- Council Tax discounts;
- A TV licence discount; and/or
- Free vehicle tax.
9.0 Useful Links
- Equality Act 2010 Guidance: https://www.gov.uk/government/publications/equality-act-guidance.
- Definition of disability under the Equality Act 2010: https://www.gov.uk/definition-of-disability-under-equality-act-2010.
- Disability rights: https://www.gov.uk/rights-disabled-person.
- Discrimination – your rights: https://www.gov.uk/discrimination-your-rights.
- What to do if you become disabled: https://www.gov.uk/if-you-become-disabled.
- Equality and Human Rights Commission (EHRC): https://www.equalityhumanrights.com/en.
- Mind Disability Discrimination: https://www.mind.org.uk/information-support/legal-rights/disability-discrimination/disability/#.Xdv-iuieSUk.
- Disability Living Allowance (DLA): https://www.rethink.org/advice-and-information/rights-restrictions/money-benefits-and-employment/disability-living-allowance/.
- Mental Health & Money Advice (by Rethink Mental Illness): https://www.mentalhealthandmoneyadvice.org/.
- EHRC Scotland: https://www.equalityhumanrights.com/en/commission-scotland.
- Scottish Human Rights Commission (SHRC): http://www.scottishhumanrights.com/.
- Northern Ireland:
- Equality Commission for Northern Ireland (ECNI): https://www.nidirect.gov.uk/contacts/contacts-az/equality-commission-northern-ireland.
- Employment Rights and the Disability Discrimination Act: https://www.nidirect.gov.uk/articles/disability-discrimination-law-employment-rights.
- Mental Health and Disability Discrimination: https://www.nidirect.gov.uk/articles/mental-health-and-disability-discrimination.
ODI (Office for Disability Issues). (2011) Equality Act 2010: Guidance. Available from World Wide Web: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf. [Accessed: 25 November, 2019].