1.0 Introduction
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.
- Mental
health conditions:
- With
symptoms such as anxiety, low mood, panic attacks, phobias, or unshared
perceptions;
- Bipolar
affective disorders;
- Obsessive
compulsive disorders (OCD);
- 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
- UK:
- Scotland:
- Wales:
- Northern Ireland:
10.0 References
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].
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