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The Lucky 13

Kiran Daurka and paralegal Martina Farska discuss planned mental health reforms and the proposed alterations to the Equality Act in the context of employment and discrimination law

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Kiran Daurka (pictured) is a partner in the Employment team at Leigh Day where she is assisted by paralegal Martina Farska. 
Only 13% of people in the UK are getting through their day feeling balanced and happy. This eye-opening statistic is published as Mental Health Awareness Week 2017 takes place this week.

The latest estimate from the Mental Health Foundation suggests that only a fragment of our population is thriving, whilst the rest of us is, well, surviving, trying to get through the day without feeling lonely, stressed and anxious.
Last Saturday (6th May), PM Theresa May announced in her speech at the Charity Commission her plans to focus on much needed mental health reforms. Her vision of a ‘Shared Society’ encompasses a number of changes, from scrapping the flawed Mental Health Act to dealing with discrimination against ethnic minority patients and excessive detentions under the Mental Health Act. 

The most notable changes for discrimination and employment lawyers are the proposed alterations to the Equality Act 2010. The present law places the onus on the individual, who has to demonstrate that his or her mental health condition is a disability in order to gain protection under the Equality Act. 

For many years, campaigners and lawyers have argued that the hurdle to gain the relevant protection under the Equality Act is too high for those with a mental health condition.  It is too easy for an employer to force an employee with a mental health condition to prove all elements of the definition of disability, knowing that the risk of failing to do so was sufficient to put an employee off seeking legal redress.
In the case of J v DLA Piper, a talented lawyer had a job offer withdrawn on disclosure of her mental health condition.  At Tribunal, the Employment Judge held that her diagnosed clinical depression did not amount to a mental impairment, further there were too many things that she could do which prevented her from proving a disability.  The Employment Appeal Tribunal disagreed and held that the focus should be on an individual’s day-to-day activities, as a long term and substantial adverse effect leads to the inference in most cases that there is a mental impairment.  

There has been much litigation in relation to mental health cases in the workplace, so any amendments to the law are welcome if they serve to circumvent the need for such legal cases.  However, those changes need to be substantial.  

Given the on-going stigma associated with mental health conditions in the workplace, would the government consider classifying those impairments as deemed disabilities without the need for fulfilling the definition (as with hiv and cancer)?

Of course, any changes to the Equality Act remain futile until such time as proper access to justice is afforded to individuals to assert their rights.  And, is it time to consider that someone living with a mental health condition is only disabled by the society and workplace that they exist within?

In today’s workplace, which is increasingly impinging on our down-time, it is easy to see how one falls into the circle of surviving, where living and thriving is a distant dream.  It is unsurprising then that more than 4 in 10 people say they have experienced depression. Over a quarter of people in the UK experience panic attacks. Nearly two thirds of our population experiences a mental health problem. Seven out of 10 women experience mental health difficulties at some point in their life.  

Whilst any interest from government into overcoming hurdles faced by individuals living with mental health conditions is welcomed, the steps taken to ensure that those people are not excluded from the workplace will require more than just a superficial tinkering with the legislation.

The government needs to look at access to justice issues; they need to consider whether the protection under the Equality Act can be broader and whether we need to create a social model of mental health disability.  

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