Representing and

supporting members
with mental health
problems at work
Guidance for trade union representatives
Disability Forward Limited is proud to
have worked with the TUC to produce this
guidance document. We hope that workplace
representatives will find it easy to understand
and easy to use.
Foreword
Hundreds of thousands of people at work face
ignorance, prejudice and stigma because
of mental health problems. Even more – who
are both able and willing to work – cannot
get a job if they have or have had a mental
health problem because of discrimination by
employers. This goes on even though it is
illegal under the Disability Discrimination Act.

Dealing with discrimination effectively means challenging the

prejudices that underpin it. In workplaces trade union reps tackle
the problems faced by their members every day not by turning to
the law, but by negotiation.
This new guidance has been published to help trade union reps
and officials provide a good service to members with mental health
problems. It aims to equip reps in workplaces with the information
they need to deal as well with mental health issues as they do with
the other issues that crop up on daily basis.
If in the process of resolving mental health issues in the workplace,
reps can persuade managers and employers to adopt a less
prejudiced attitude to mental health in general, they can also be
part of changing the overall picture for the better.

Brendan Barber,
General Secretary, TUC

1
Summary
People with mental health problems
experience some of the most severe disability
discrimination in the workplace. There is a lot
of advice for employers on how to ensure that
their policies and practices are more inclusive
for recruits and employees with mental health
problems. However, there is less guidance
specifically tailored to trade union reps.

This booklet enables reps to understand the Disability

Discrimination Act (DDA) as it applies to people with mental health
problems, and provides straightforward advice and guidance for
workplace reps on how to support members with mental health
problems and tackle discrimination in the workplace.
The Disability Rights Commission (DRC) ceased to exist in
2007, and has become part of the Equality and Human Rights
Commission (EHRC). However, this guidance document has been
based, in part, on a document co-produced by the TUC, the
Sainsbury Centre for Mental Health, MINDFUL EMPLOYER and the
DRC. This booklet is published by the TUC, but the Equality and
Human Rights Commission has been pleased to endorse it. It has
been written for the TUC by Michelle Valentine, Director, Disability
Forward Limited, www.disabilityfwd.co.uk

2
Contents
Page
Section 1 Introduction 4
Section 2 H
 ow to tackle some common 6
workplace problems

Section 3  The Disability Discrimination Act 26

1995 (as amended) and the
employment of people with mental
health problems

Appendix 1 Useful Information A to Z 36

Appendix 2 Other things unions can do 40
Appendix 3 A few facts about employment and 41
mental health problems

Appendix 4 What are mental health problems? 42

3
Section 1
Introduction
Good working lives are a positive thing. They
offer a way for everyone to feel valued, to reach
their full potential, and to develop and maintain
valuable social networks. This is equally true for
people with mental health problems, who with
the right support and adjustments can enjoy the
benefits of work along with everyone else.
This booklet has been produced to give trade union reps
the information and guidance they need to help members
with mental health problems keep their jobs and develop in
their careers.
This guidance uses the term ‘union reps’, to cover a range of
roles, including shop steward, union official, lay workplace
rep and other types of rep. The term could also be applied to
members of disabled staff networks who act as representatives
for other group members.
This booklet uses the term ‘mental health problems’, as this is a
term most people will understand and find easy to use. However,
be aware that some people may not be happy with the term,
and reps should therefore talk with their members about what
terminology they would prefer to use.
Reps should also be aware that other diversity issues may have
an impact on someone’s mental health. For example, a person
may have another disability, or they may face additional barriers
because of, for example, their gender identity or sexual orientation.

4
Many people experience mental health problems at some
point in their lives (see Appendix 3), and most reps will know
somebody with a common mental health problem. Therefore,
knowing how to make adjustments in the workplace for people
with these health problems can benefit a wide range of union
members. Unions can also help employers not to lose valuable
and skilled staff.
There is an overview of mental health problems in Appendix 4.

5
Section 2
How to tackle some common
workplace problems
The purpose of this section is to explore
common areas of difficulty faced by reps
dealing with members who have mental health
problems. It explains, through examples, how it
is possible to resolve issues. Finding solutions
will benefit not just the member in question –
but also employers.

n Recruitment
Unions may have little or no influence on recruitment policies or
processes. But where the employer has devised policies that
acknowledge disability (they may use the ‘two ticks’ symbol, for
example), unions are in a good position to advise employers to:
• Actively encourage job applications from people with mental
health problems.
• Ensure that medical checks are either required for every
applicant or not at all – employers should not medically check
only those they who think may be disabled as this may amount
to unlawful discrimination.
• Ensure that medical checks are only used to find out if people
need reasonable adjustments at work.
Further advice on recruitment issues can be obtained from
organisations listed in Appendix 1.
In a rep’s day-to-day work, however, there are four key areas that
members with mental health problems may need guidance with:
• the disclosure of a mental health problem
• reasonable adjustments in the workplace
• sickness absence, and
• health and safety (H&S) issues.

6
n Disclosure of a mental health problem
People with mental health problems may be reluctant to
disclose their impairment because they fear that it would impact
negatively on their chances of getting a job, or keeping a job
once they are employed.
Disabled people are not under a legal obligation to disclose
their disability or long-term health condition, although if they
choose not to do so this may affect their ability to assert their
legal rights under the Disability Discrimination Act (DDA). (See
paragraphs 7.27 and 7.28 of the DRC’s Statutory Code of Practice
on Employment and Occupation available from the Equality and
Human Rights Commission website www.equalityhumanrights.com)
Decisions over disclosure are deeply personal, but unions
should encourage members to disclose their mental health
problem to the employer, as the onus is then on the employer to
make reasonable adjustments.
An employee may disclose a mental health problem to a
number of people, including:
• a trade union rep
• a colleague
• occupational health/medical advisers acting for the employer
• a line manager
• during anonymous disability monitoring exercises.

7
 Question
n As a union rep what should I do if a member
tells me that they are feeling depressed or more
stressed than usual?
1. B
 e aware that the member may not recognise that they have
a mental health problem. They may simply say that they feel
stressed or depressed, that they are losing sleep or experiencing
mood swings, or have a number of other problems. It may also
be that the person is reacting to a recent event, such as the loss
of a loved one or the break up of a long-term relationship.
2. R
 eassure the member that you and the union will support the
member as much as you can.
3. G
 ive the person time to explain things to you in their own way;
don’t feel that you need to provide instant solutions – sometimes
people just need to talk.
4. T
 ry to be honest. If you don’t know what to say to the person or
how to respond to them then don’t pretend you do. Tell them you
want to support them and that you will work together to do this,
and that you may need to find out more information to help both
of you.
5. P
 rovide the member with some information about the sort of
adjustments that might help them, and help them to decide how
they would like you to work with them to discuss the issue with
the employer if appropriate.

8
A good starting point when a member asks for help is for reps
to give them some basic information about their rights under the
DDA (you can find this on the TUC’s website, www.tuc.org.uk). It
may not be clear to the rep whether the member is covered by
the DDA, but the TUC advises unions to assume that a person
may have rights under the DDA, because then the discussion
can move onto what reasonable adjustments might support the
individual at work.
The rep might also ask the member whether they would like
signposts to other helpful organisations. See the list in Appendix
1 for contacts, or suggest they use their employee assistance
programme (if the employer has one).
Unions need to ensure that reps have someone else in the
union who they can talk to about how to help their member
most effectively. Unions should remember that some reps may
find that working with a member with mental health problems
is difficult for them, so they should provide reps with the right
support and advice.

9
Reasonable adjustments

The DDA gives disabled people the right to ask

for ‘reasonable adjustments’ in their workplace.
Reasonable adjustments are defined in other guidance available
from the TUC or the Equality and Human Rights Commission (see
Appendix 1), and deciding what is ‘reasonable’ can be tricky. Here
are some examples of reasonable adjustments that have helped
members:

A n Allowing the employee to adjust their

working hours

A member of PCS union had a depressive illness. She took

medication in the mornings that did not take effect for a few
hours. This, combined with the fact that she did not sleep well
at night, meant that she was often not capable of getting to
work before usual work hours began. She would call in sick
and this led to the employer enacting attendance management
procedures.
Her rep worked with the employer to agree that the member
could arrive at the office later, once the medication had started
working, and that she could work later in the evenings to make
up the time during the period of her illness. This meant that she
could complete her work on time, improve her sickness record
and lessen the pressures on her.

B n Allowing the person to take more frequent

breaks than other people

A PCS member who was also a union rep, was diagnosed with
anxiety disorder, which was specifically recognised as work-
related (linked to some difficult cases he had to deal with). The
member was signed off work for a total of four months, placed on
sedatives and received counselling. The member’s GP was wary
of him returning to work if he had to work on difficult cases again,
but the member wanted to carry on with his union work.
❯

10
 It was agreed that the member would return to work on a part-
time basis. It was also agreed that if the member felt stressed at
any point, he was to leave the situation and go for a walk, off site,
for an hour if necessary. Then on his return, he was to talk to a
nominated person in HR, who would discuss with him what the
problem was and look into it on the member’s behalf. The member
only used the provision once, but the security of knowing that he
could do it if he needed to enabled him to cope much better with
difficult work situations.

C n Providing a workplace ‘buddy’

A member of TGWU had a sight impairment and a history

of depression. She found that when her workplace was
restructured, she was given tasks to do that were difficult to
complete without the right reasonable adjustments for her
eyesight. It took a long time for the adjustments to be put
into place, and all the while work was piling up. She became
stressed and depressed and began to take more and more
time off.
She spoke to her rep while she was off work because she
wanted to reassure them that with the right adjustments and
supportive colleagues she was more than capable of adjusting
to the new working patterns and demands.
The rep arranged for the adjustments she needed to be put in
place quickly and agreed a period of review with the employer
so that the member had time to get used to the adjustments and
new working practices. The rep also arranged that a colleague
who the member felt comfortable with would act as an informal
‘buddy’. If the member felt things were getting difficult, the buddy
would provide friendly support, and would also raise issues with
the union if this was appropriate. The buddy had a short training
session before taking up the role so that they felt confident about
how it would work.

11
 D n Changing the person’s work duties

A member of UNISON who had a mental health problem found

it difficult to deal with members of the public. His job role was
mostly desk-based clerical work, but he was increasingly
asked to cover the reception desk because of staff shortages.
This caused him anxiety, which had a knock-on effect on his
confidence to perform the rest of his role.
His rep talked to the employer and said that they understood
that the situation was difficult, but that they were concerned
about their member.
The union agreed with the employer that reception duties would
be transferred to another member of staff. To ensure a fair
workload on other staff, and to ensure that the member did not
feel that they were letting anyone down or being difficult, the rep
agreed that the member took on some of the desk-based admin
duties that the other employee would fall behind on if they did
more reception work. Some of the reassigned tasks were new to
the member, so the rep made sure that their member was given
some support and training to develop his confidence in dealing
with the new work.

E n Altering supervision or appraisal methods

A union member with a history of depression worked for an

employer that required all employees to meet set targets each
month. A new set of targets was introduced, and everyone found
things more difficult. The member felt very pressured by the
targets, especially as they also had problems at home. They
became fearful of telling the employer that they were worried
in case they were seen as being incompetent. They were also
afraid of talking to their colleagues as they thought they would
be seen as weak because everyone had to meet the targets.

❯
12
 The rep suggested that they arrange a meeting with the
employer before the member was due for their monthly
assessment.
The rep, with the agreement of the member, agreed with the
employer that:
a. the member would be allowed a longer period of time to
adjust to the new target regime
b. if the member still found things difficult the employer would
look at whether the member’s work targets could be adjusted
c. the member could raise concerns at any time, rather than
waiting for their monthly assessment like other staff.

F n Redeploying the person into a different role

A member of PCS developed a serious psychological problem

following an accident. On his return to work the type of work
he had been doing for a long time was centralised in another
office. He was given new duties, but struggled from the outset
and instead of providing the support he needed, the employer
invoked performance management procedures. This resulted in
the member taking more time off.
The union rep established that the member wanted a change
of job, and researched suitable jobs that would involve minimal
training and as few aspects of unknown work as possible. The
most suitable one was in another office. They then convened a
case conference meeting with the line manager and successfully
negotiated a move for the member as a reasonable adjustment.
The rep accompanied the member to their occupational health
referral and influenced the contents of the report so that it
endorsed the move of office/role as a positive move, and that it
should be made permanent.
As a result the member now enjoys his job, has taken very little
sick leave and has not experienced a recurrence of his
psychological problems.

13
 A legal case
n Talbot vs WAGN Railways
(Appeal no. UKEAT/0770/04/DA)

Mr Talbot was a train operator with WAGN Railways. A member

of the public committed suicide by jumping under the train Mr
Talbot was driving. As a result he suffered post-traumatic stress
disorder (PTSD). He was given a job on the ticket barrier, but
after an altercation with a member of the public the occupational
health physician stated that he should have a role with limited
contact with the public. He was given a satisfactory role in
the customer relations department, but soon after there was a
restructuring. Mr Talbot failed to get any of the jobs through the
competitive process due to his limited experience in customer
relations. He had some time off sick and was subsequently
dismissed.
The Employment Tribunal (ET) originally decided that the
dismissal was justified, but Mr Talbot lodged an appeal, which
was allowed. The Employment Appeal Tribunal (EAT) found that
failure to retain Mr Talbot in the customer relations department
was a breach of the duty to make reasonable adjustments.
The employer should have transferred him into a role in that
department and considered adjustments to enable him to take
up that role long term. He was awarded significant remedy,
although the EAT did apply a reduction to the compensation
awarded to Mr Talbot on the grounds that transfer to a suitable
role and further training may still have failed in the long term.

14
Sickness absence management

Sickness absence management procedures

should be flexible. Ideally they should:

a. Incorporate a provision for allowing people to

take disability leave.
Disability leave allows an employee to plan with the employer
for any regular absences, such as needing to attend counselling
appointments that can only be provided by the NHS during
work hours.

b. Record absence clearly related to a person’s

disability separately from other sickness absence
Reps should encourage employers to discount disability-
related absence from the person’s overall sickness record. If the
employee is likely to be absent for a long time, even if the absence
is disability-related, it may be lawful for the employer to invoke
attendance management procedures, but only if they have made
every effort to make reasonable adjustments to enable the person
to return to work.

15
Return to work management

This can be a difficult process for everyone,

but there are some good practice
approaches that can help.

n Keeping in contact with an employee

A member of PCS had been off sick for a couple of months. The
employer was wary of contacting them in case the person felt
pressured to come back to work when they were not ready.
The union rep advised the employer that they could make
contact with the member to find out how they were, and to
update them on things at work. The rep also suggested that the
employer might want to reassure the member that they wanted
to keep the person in their job and would work with their rep to
make this happen.
The rep also discussed a possible return-to-work strategy with
the employer and suggested some reasonable adjustments that
could help their member return to work, such as:
• a phased return
• buddy support from another staff member
• time off to attend counselling.
The rep then had an informal chat with their member so that they
felt wanted and supported, and reassured them that there were
things that could be put into place to help them return to work.

A member of UNISON had been absent, and had submitted a

letter from their GP stating that they had ‘anxiety’ and should not
be at work. The member told their rep what the GP had said.
The rep advised their member that the GP may not be aware of
an employer’s duty to make reasonable adjustments, and what
things employers can do to help people back to work.
The rep suggested that they keep in touch with the employee,
and that they would investigate some reasonable adjustments
that could help the member return to work.

16
n Tackling barriers to return to work

A member of USDAW worked as a regional security manager.

He had responsibility for managing security staff in several
stores as well as working as a security guard in one of the
stores himself. He had experienced episodes of depression
when he was younger but had been free of them for many
years. He approached his union for advice after a recurrence
which led to him being off sick for six months.
His sick notes confirmed a diagnosis of depression/anxiety
and stress. He explained that he believed the reason for the
recurrence of his depressive illness was the fact that he was
being bullied by his line manager. The bullying had been going
on for some time but he hadn’t felt able to raise this with anyone
at work before going off sick, nor did he feel able to return to
work whilst that same manager was in post.
The rep decided to submit a grievance and an investigation was
carried out. As a result the manager left the organisation. This
meant the member was able to consider returning to work. He
returned to work part-time for the first fortnight, and then started
full-time. His employer also made an ‘ex gratia’ payment to him;
a lump sum payment that was the difference between statutory
sick pay (SSP) and his average weekly contractual earnings for
the eight months he was off sick.

17
Health and safety issues

Employers owe a duty of care both to the

employee and to other workers and members
of the public, but this should not be used as
a reason to stop a person with mental health
problems doing their job.
Employers must not use health and safety (H&S) issues as a false
excuse for discriminating against an employee with mental health
problems. There is more advice on H&S issues and disability at
work from the Health and Safety Executive, see Appendix 1.
There is a legal requirement on employers to conduct a
comprehensive risk assessment of the workplace. If any workers
either introduce additional risks, or are found to be at additional
risk themselves, employers must take this into account. Indeed
H&S regulations state that the needs of pregnant women and
young workers must be specifically looked at.
In most cases employees with a mental health problem pose no
additional risk to either themselves or others, so it is important unions
understand that just because a person has a mental health problem
they should not assume that a risk assessment must be undertaken.
This is particularly true if people without a mental health problem
would not be subject to a risk assessment in the same situation.
Often general measures aimed at supporting all staff will be
equally effective for people with mental health problems (by
allowing for debriefs after dealing with a difficult client or situation
at work, for example).
If a specific risk assessment is carried out it must:
• fully involve the employee with mental health problems
• be clear about what it is intending to achieve
• be conducted by someone who understands both H&S
requirements and the DDA, and the duty to make reasonable
adjustments
• not make assumptions about the effects of the person’s condition
on their ability to do their job
• only be undertaken to identify what reasonable adjustments can
be made to enable a person to do their job
18
• only be conducted when any adjustments already identified
have been shown to be effective
• identify actions and persons responsible
• include a review mechanism for any actions implemented to
ensure that they remain effective.

n Example

A union member had Bipolar disorder. She enjoyed working with

the public as an adviser to colleagues working with clients in
receipt of social care support. The member wanted to move into
a role where she took on her own client caseload. A vacancy
arose and the member applied. She was successful in her
application, but the employer said that they should do a risk
assessment before she took up the role because the job could
be stressful.
The union rep reminded the employer that undertaking risk
assessments about a disabled person when they would not
do so about a non-disabled employee taking up the role could
amount to unlawful discrimination.
Instead the rep suggested a number of alternative measures:
a. T
 hey discussed with the employee whether they felt worried
about any aspect of the new role, and what adjustments could
help them. The rep noted that planning ahead in this way
would make things easier for everyone.
b. T
 hey examined with the employer what the standard checking
procedures were that all employees doing client work had to
undertake, and discussed how adjustments could be built
into this process.
c. T
 hey confirmed that there were proper support procedures
in place for all staff dealing with difficult and complex client
cases, and suggested that this support might be suitable for
the member too.
d. T
 hey told the member that if any problems did arise, then they
could talk to their rep, who could support them in asking for
adjustments.
The rep advised the employer that they could only refuse to
make an adjustment if it would be unreasonable because the
H&S risk to employee or clients would be unacceptably high.
19
Disciplinary issues

The DDA does not require employers to

overlook issues of misconduct, or any matter
for which other non-disabled employees would
normally be subject to disciplinary procedures.
However, unions should be aware of two key
issues:
1. E
 mployers should avoid disciplining a person with mental
health problems for a reason related to their disability, if
adjustments have not been made to support the employee.
2. E
 mployers must ensure that any discipline or grievance
procedure is accessible to people with mental
health problems.

n Example

A rep noticed that a member was often making mistakes in

their work and missed deadlines. They talked to the member
and raised their concerns. The rep said they understood that
sometimes people make mistakes and miss deadlines because
they are stressed and are not being supported in their work.
The rep asked the employee if they would like to discuss
adjustments that could help them to concentrate on their work
and so help them meet work deadlines.
The member said they found it difficult to concentrate in the
office environment and so they found it difficult to organise
and plan their work. They also told the rep that they had been
diagnosed with depression in the past.
The rep and member agreed that the member would have the
use of a small meeting room for an hour at the start and end of
each day so that they could plan their work in a less stressful
and quieter environment.

20
n Example

A member who has recurring depression joins a new team.

After several months, they complain to their rep that other team
members are making comments about people who ‘want an
easy life’ and ‘will use any excuse not to come to work’. The
member feels that they cannot be honest about their depression
and that they feel isolated and threatened. The rep agrees with
their member that they will support them to talk to their line
manager. They agree but the manager does not take the issue
seriously and says the member needs to get on with others.
The rep advises their member that because they have given the
employer a chance to change things and this had not happened
they should submit a grievance.
The member agrees but is very nervous about facing a formal
process. They ask whether a family member can attend
meetings with them so that they feel supported. The rep agrees
to this, and agrees with the employer that it is a reasonable
adjustment. The employer, rep and member also agree that the
family member will:
a. be briefed on the organisation’s policy on grievance
b. b
 e made aware of appropriate conduct during the process
and agree to abide by this
c. b
 e clear about their role as informal support to the union
member and how this relates to the union reps official role.
The grievance process proceeds on this basis as everyone
feels confident that the process will be supportive and aimed at
finding a resolution for all parties.

21
 n Hall vs Department for Work and Pensions
Eat/0012/05

Ms Hall had a psychiatric condition that could have been

controlled by medication, which she refused to take. She did
not declare her condition on the health declaration form before
being recruited. Within a few days in her new job she began
to clash with colleagues and after a series of clashes she was
suspended pending disciplinary action. Following a hearing she
was dismissed for failure to comply with conduct standards. She
claimed disability discrimination at tribunal. She was deemed to
be a disabled person, and the tribunal found in her favour.
The employer appealed. The EAT held that there was a
failure by the employer to address the question of reasonable
adjustments. However, it also held that no reasonable
adjustment could have been made because Ms Hall refused
to take medication. It therefore limited compensation for this
breach to injury to feelings as no financial loss resulted from it.

n Butterfield vs Edmund Nuttall Ltd

UKEAT 0028/05/MAA & UKEAT 0865/05/MAA

While driving on business, Mr Butterfield committed two offences

of indecent exposure and one of dangerous driving – all in one
day. The next day he broke down and was admitted to hospital.
He remained off work. He was sentenced to a community
rehabilitation order and disqualified from driving. He met his
employer to inform them of his disqualification, but did not inform
them about the indecent exposure offences. The employer later
found out and dismissed him. He lodged a successful claim for
disability discrimination at tribunal.
❯

22
The employer appealed the tribunal’s finding. The EAT held
that exhibitionism and sexual abuse of others are conditions
specifically excluded from the DDA definition of disability.
It had been argued in tribunal that Mr Butterfield would not
have committed these offences had he not had a disability
– specifically depression. The EAT held that because the
employer dismissed him due to the sexual offences, and his
concealment of them, rather than his mental impairment, it had
not discriminated against him on the grounds of his disability.

n Claydon House Ltd vs Hamilton Bradbury

Employment Appeal Tribunal
EAT/0315/04

The manager of a care home went off work with ‘acute stress
reaction’ after she was in a meeting with local authority officers
discussing the way that the care home was being managed.
She was requested to attend a disciplinary meeting, and
requested reasonable adjustments for the meeting in relation
to her disability, namely she wanted a supportive person to be
present. She was not satisfied with the adjustments proposed
by the employer and did not attend. She was then dismissed for
gross misconduct. The ET found in her favour, but the employer
appealed. The EAT found that the employer had discriminated
against the employee, in breach of the DDA, and that where it is
clear that the reason for less favourable treatment is a person’s
disability, tribunals should assess compensation under the DDA
provisions, which allows for unlimited compensation to
be awarded.

23
 Documenting decisions
It is imperative that unions document any requests for, and
decisions made about, making reasonable adjustments in
relation to problems the member with mental health problems
have in the workplace. Reps should make a note of:
• what work issues were of concern to the member
• what advice the rep sought about adjustments
• evidence of how they supported their member to discuss with
the employer what adjustments would be put into place
• what adjustments were agreed and a process for reviewing
arrangements.
Unions should also encourage employers to document decisions
they take about making adjustments. Both parties may need to
provide this documentation for a grievance procedure or an ET.
The member should also have a record of any such requests
and what the outcome was.

24
Government support for disabled people
in employment
There are a number of government schemes that encourage
and facilitate disabled people to get into, and stay, in work.
These are managed by JobCentre Plus. The most important of
these schemes is Access to Work, which can help to pay for
reasonable adjustments. For more information on Access to
Work, see Appendix 1.

25
Section 3
The Disability Discrimination Act 1995
(as amended) and the employment of
people with mental health problems

n This section provides a brief guide to:

1. who is covered by the DDA
2. what the legal duties are for employers
3. what the legal duties are for trade unions.

n Introduction
Part 1 of the DDA describes who would be defined as ‘disabled’
according to the Act. Part 2 sets out the legal duties for those
who employ disabled people.
The DRC produced a statutory Code of Practice that explains
the application of the law, and this can be referred to by ETs. The
TUC has also provided guidance in its publication Disability at
Work, which can be downloaded from the equality section of the
TUC website.

26
1. Who is covered?
According to the DDA a disabled person is someone who has a:
‘physical or mental impairment which has a substantial,
adverse, long term effect on his or her ability to carry out
normal day-to-day activities’.
A mental impairment is a condition that affects ‘mental
functioning’, for example a learning disability or mental health
condition such as depression.

Substantial means: • more than minor or trivial.

Long-term means: • has lasted 12 months,

• is likely to last 12 months from
the onset,
or
• will last for the rest of the
person’s life.

Normal day-to-day An activity which involves any

activities means: of the following:
• mobility
• doing something with your hands
• physical co-ordination
• continence (controlling your bladder
and bowels)
• ability to lift, carry or move everyday
objects
• speech, hearing or eyesight
• memory or ability to concentrate,
learn or understand, or
• perception of the risk of
physical danger.

27
 People who have a mental health problem may or may not be
covered by the DDA – it depends on how severe their problem is
and how it affects them in their lives. They no longer have to have
a medical label for their mental health condition; they just have
to show that the effects of the condition would meet the DDA
criteria. There is guidance available on this, see Appendix 1.
A woman who experienced a mental health problem four years
ago that had a substantial and long-term adverse effect on her
ability to carry out normal day-to-day activities, but who has
experienced no recurrence of the condition, is still entitled to the
protection afforded by the Act, as a person with a past disability.
One difficult area is recurrent conditions. The Act states that, if
an impairment has had a substantial adverse effect on a person’s
ability to carry out normal day-to-day activities but that effect
ceases, the substantial effect is treated as continuing if it is likely
to recur: in other words, if it is more likely than not that the effect
will recur. Conditions with effects that recur only sporadically or
for short periods can still qualify as impairments for the purposes
of the Act, in respect of the meaning of ‘long-term’.

n Example

A young man has Bipolar disorder – sometimes known as manic

depression. The first episode occurred in months one and two
of a 13-month period. The second episode took place in month
13. This man will satisfy the requirements of the DDA definition
of the meaning of long-term, because the adverse effects have
recurred beyond 12 months after the first occurrence and are
therefore treated as having continued for the whole period (in
this case, a period of 13 months).

28
 n Example

A woman has two separate episodes of depression within a

10-month period. In month one she loses her job and has a
period of depression lasting six weeks. In month nine she suffers
bereavement and has a further episode of depression lasting
eight weeks. Even though she has experienced two episodes of
depression she will not be covered by the Act. This is because,
at this stage, the effects of her impairment have not yet lasted
more than 12 months after the first occurrence, and there is no
evidence that these episodes are part of an underlying condition
of depression that is likely to recur beyond the 12-month period.

n The DDA definition and self-identity

It is important to recognise that many people who are likely to
have rights under the DDA may not wish to identify themselves
using the term ‘disabled person’, and may be reluctant to
disclose their disability to their employer or potential employer.
This could be because they fear the consequences of using this
label about themselves, or they may simply not feel that they are
‘disabled’. It is important that reps make their members aware
that if a person is not disabled under the DDA they cannot claim
protection from the law.

2. Employer’s duties under the DDA

Employers have a duty not to discriminate
against disabled people in all aspects of work.
There are five types of discrimination:

n Direct discrimination
This is treating someone less favorably simply because they
have a disability. Direct discrimination cannot be justified in law.

29
 n Example

An employer is selecting candidates to appoint as project

managers in various departments. There are a number
of candidates who have similar levels of qualification and
experience, however, one of these candidates has a mental
health problem. The employer decides not to employ that person
because an assumption is made that it would be too stressful
for them to take up a demanding role. This is likely to amount
to direct discrimination because the employer is making the
decision not to recruit based (solely) upon the person’s disability.
They are making assumptions about them that they would not
make about a non-disabled person.

n Failure to make reasonable adjustments

Under the DDA, employers have a duty to make reasonable
adjustments for disabled job applicants and for disabled
employees to enable them to effectively execute their current role
or progress through the organisation. An employer cannot justify
a failure to comply with the duty to make reasonable adjustments.

n Example

An employee who has severe anxiety sometimes finds it difficult

to concentrate at work due to being in a large, busy open plan
office. They ask their employer for the provision of a quieter
desk to enable them to work effectively. There are some spare
desks in the office that the person could use, and although
the person would not be sitting right next to their team, they
would be not be far away. This adjustment is likely to be seen
as reasonable because it does not cause the employer any real
disruption to achieve. As such the employer would have a duty
to make the adjustment.

30
n Disability-related discrimination

Disability-related discrimination is more complicated but very

common. It occurs when the reason for the discrimination relates
to the person’s disability, for example, when a general policy or
practice used by an employer ends up having a discriminatory
effect on a disabled job applicant, employee or ex-employee.
To decide if disability-related discrimination has occurred, the
employer’s treatment of the disabled person must be compared
with that of a person to whom the disability-related reason does
not apply.
n Example

A person with depression is dismissed for taking regular periods

of sick leave that is disability-related. The employer’s policy,
which has been applied equally to all staff (whether disabled or
not), is to dismiss all employees who have taken this amount of
sick leave. The disability-related reason for the less favourable
treatment of the disabled person is the fact of having taken
regular periods of sick leave. The correct ‘comparator’ is a
person to whom that reason does not apply – that is, someone
who has not taken the same amount of sick leave. Unless the
employer can show that the treatment is justified, it will amount to
disability-related discrimination because the comparator would
not have been dismissed. However, the reason for the treatment
is not the disability itself (it is something related to it, namely the
amount of sick leave taken) so there is no direct discrimination.

31
 n Harassment
The Act says that harassment of disabled people is unlawful.
Harassment can happen when another person talks or behaves
in a way that:
• violates the disabled person’s dignity,
or
• creates an intimidating, hostile, degrading, humiliating or
offensive environment for them.
A person with schizophrenia is often referred to by colleagues,
in a joking manner, as being ‘an oddball’ and ‘a bit off the
wall’. People with schizophrenia may experience the world
differently to most people, and this may at times impact upon
their behavior at work or in other settings. However, regardless
of the fact that colleagues may or may not have intended any
offence, the disabled person feels that these remarks erode their
self-confidence and make them feel nervous about the work
environment. The conduct of the disabled person’s colleagues is
likely to amount to harassment and employers would have a duty
to deal with this.

n Victimisation
Victimisation is a special form of discrimination. The concept of
victimisation should not be confused with the ordinary meaning
of this term in everyday language; it has a different and more
specific meaning under the DDA. The Act makes it unlawful for
one person to treat another (‘the victim’) less favourably than
they treat or would treat other people in the same circumstances
because the victim has in good faith:
• brought, or given evidence or information in connection with,
proceedings under the Act (whether or not proceedings are
later withdrawn),
or
• done anything else under or by reference to the Act,
or
• alleged someone has contravened the Act (whether or not the
allegation is later dropped).

32
 n Example

An employee takes their employer to ET claiming disability

discrimination because they believe they have been discriminated
against. The disabled employee seeks the support of a colleague
who knows about the case. The colleague attends the tribunal
hearing and gives evidence in support of the disabled person’s
case, in good faith. After the hearing, the employer brands the
colleague ‘a troublemaker’ and tries to undermine them because
they gave evidence against the employer at the tribunal hearing.
This is likely to amount to victimisation.

The Disability Equality Duty

The Disability Equality Duty (DED) came into
force in December 2006, and required all public
authorities to meet the ‘general’ and ‘specific’ duty.
The general duty requires public authorities or those carrying out
work of a public nature to:
• promote equality of opportunity between disabled persons and
other persons
• eliminate discrimination that is unlawful under the Act
• eliminate harassment of disabled persons that is related to
their disabilities
• promote positive attitudes towards disabled persons
• encourage participation by disabled persons in public life
• take steps to take account of disabled persons’ disabilities,
even where that involves treating disabled persons more
favourably than other persons.
Public authorities subject to the specific duty have to produce
and publish a disability equality scheme to provide evidence
of how they have involved disabled people in drawing up the
scheme and what activity they intend to undertake to meet the
duty. For more information on this, refer to the TUC’s publication
on the DED.
33
 Trade union duties under the DDA
Trade unions, referred to as ‘Trade Organisations’ in the DRC’s
guidance (see Appendix 1) should be aware that they too have
duties under the DDA.
If a union directly employs disabled people, it has the same
duties as any other employer would have.
Unions also have duties to ensure that they do not discriminate
against disabled people:
• when they decide who should be a member of the union
• in the terms of membership offered to a disabled person
• b
 y refusing to accept, or deliberately not accepting, an
application for membership from a disabled person
• in the way it provides any training, services or benefits to
disabled union members.
Unions are also required to make reasonable adjustments for
their disabled members. Some examples of helpful adjustments
that members with mental health problems might find helpful are:
• m
 aking adjustments to times and venues of branch meetings,
case conferences or other meetings (some people may prefer
meetings in the afternoon as the effects of medication may be
more prevalent in the morning)
• w
 hen dealing with personal cases, where required, allow
extended appointment times
• allow the member to take breaks in meetings if required
• allow advocates/friends to be present at meetings
• a
 llow meetings to be taped or provide written minutes/
notes afterwards
• e
 nsure that any services you buy in for your members are
appropriate – for example ensuring that solicitors who provide
legal advice to your members are fully aware of their duties
under the DDA and of good practice approaches to people
with mental health problems.

34
Reasonable adjustments and knowledge
of disabled members
A trade union (as is the case with an employer) is not under a
duty to make reasonable adjustments if it does not know, and
could not reasonably be expected to know, that an applicant for
membership or member of their union has a disability. Therefore,
unions should, at every opportunity, ask about any adjustments
that members might need. It would not be necessary for the
union to know all the details of the person’s disability, but they
might if members need adjustments to a meeting or conference
that would help that member to participate fully.

35
Appendix 1
Useful information
C E
n Care Services n Equality and Human
Improvement Partnership Rights Commission
(CSIP) (EHRC)
Advice on mental health and other (This has replaced the Disability
issues. Rights Commission, the Equal
• Website: www.csip.org.uk Opportunities Commission and
the Commission for
• Email: [email protected] Racial Equality).
• Tel: 0113 2545127 • Website:
www.equalityhumanrights.com
D
• Email:
n Dealing with depression [email protected]
Support network for people • Tel: 0845 604 6610
with depression. (main number England)
• Website: • Disability helpline:
www.dealingwithdepression.co.uk 08457 622633

n Disability Forward Textphone: 08457 622644

Limited Relevant documents:
Authoring organisation of this • T
 he Duty to Promote Disability
guidance, expertise in disability Equality: Statutory Code of
issues including mental health. Practice
• Website: www.disabilityfwd.co.uk • S
 tatutory Code of Practice on
Employment and Occupation
• Email:
[email protected] • G
 uidance on matters to
be taken into account in
determining questions relating
to the definition of disability

36
H M
n Health and Safety n MDF – the Bipolar
Executive Organisation
Advice available on stress at work, An organisation which provides
stress management and on dealing advice on manic depression/Bipolar
with H&S and disability issues in the disorder.
workplace. • Website: www.mdf.org.uk
• Website: www.hse.gov.uk • Email: [email protected]
• Email: [email protected] • Tel: 020 7793 2600
• Tel: 0845 345 0055
n Mind
n Healthy Minds at Work
Expert advice on mental
(Wales)
health issues
An advice service for employer
• Website:
in Wales.
www.mind.org.uk
Website:
www.healthymindsatwork.org.uk • Email: [email protected]
• Tel: 020 8519 2122
J
n MINDFUL EMPLOYER
n Jobcentre Plus
Expert advice and guidance on
JobCentre Plus operates the mental health at work
Access to Work scheme and other
programmes to help disabled people • Website:
get and keep work. www.mindfulemployer.net

• Website: www.jobcentreplus.org.uk • Email: [email protected]

• Email: • Tel: 01392 208833

[email protected]

37
 N S
n National Phobics n Sainsbury Centre for
Society Mental Health
Provides advice on anxiety Expert advice on mental health
disorders. and employment issues.
• Website: • Website: www.scmh.org.uk
www.phobics-society.org.uk • Email: [email protected]
• Email: • Tel: 020 7827 8300
[email protected]
n SANE
• Tel: 08444 775774
Support, information and advice
R for anyone affected by mental
health problems.
n Rethink (formerly • Website: www.sane.org.uk
National • Email: [email protected]
Schizophrenia • Tel: 020 7375 1002
Fellowship)
n Scottish Association
Provides advice and guidance
for Mental Health
on mental health issues.
Scotland’s leading mental health
• Website: www.rethink.org
charity.
• Email: [email protected]
• Website: www.samh.org.uk
• Tel: 0845 456 0455 • Email: [email protected]
• Tel: 0141 568 7000

n SHIFT – (part of)

National Institute
for Mental Health in
England
Awareness raising and advice
on mental health at work.
• Website: www.shift.org.uk
• Email: [email protected]
• Tel: 0845 223 5447

38
T
n Trades Union Congress
(TUC)
• Website: www.tuc.org.uk
• Email: [email protected]
• Tel: 020 7636 4030
• Rights at work:
www.workSMART.org.uk
• Know Your Rights:
0870 600 4882

n Scottish Trades Union

Congress (STUC)
• Website: www.stuc.org.uk
• Email: [email protected]
• Tel: 0141 337 8100

39
Appendix 2
Other things unions can do
Unions want workplaces to be a good place
to work for everyone, and there are things they
can do to improve the workplace environment
for everyone. This will not only support people
who already have a mental health problem, but
may also help others from developing them in
the first place.

The following is not a definitive list and the organisations listed in

Appendix 1 will be able to provide more advice on specific
good practice.
 nsure that as many reps as possible have had some
E
 training on mental health at work issue. Try to involve
members with mental health problems in this training.
 rain one or two people in each branch or area to be
T
 mental health champions. These people can have a
more thorough understanding of mental health problems
and how people can be better supported in the working
environment.
 etwork with other unions to share knowledge and
N
 good practice.
Review policies and procedures to ensure they are not
 discriminating against members with mental health
problems.
 evelop a union position statement about being positive
D
 and supportive of members with mental health problems,
and back this up with events and networking.
  upport employers to set up internal or external support
S
 meetings with people with mental health problems
reporting concerns and recommendations to managers.
 ncourage employers to set up a formal Employee
E
 Assistance Programme (EAP).
40
Appendix 3
A few facts about employment and mental
health problems
According to the Royal College of Psychiatrists,
at some point in their life, around one in five
women and one in 10 men will suffer
from depression. At any given time, one in
every 20 adults is experiencing a serious
‘major’ depression.

According to statistics from the September to December 2006

Labour Force Survey (quoting LFS terminology):
• O
 nly 25.8 per cent of people with depression, bad nerves or
anxiety who are of working age are actually in work.
• O
 nly 13.5 per cent of people with mental illness, phobias,
panics or other nervous disorders who are of working age are
actually in work.
• P
 eople with mental health problems have the lowest
employment rate of all disabled people of working age, at only
21 per cent.
According to the Chartered Institute of Personnel and
Development’s quarterly Labour Market Outlook Survey report
(Autumn 2007), 61 per cent of employers who had hired staff
with a history of mental ill-health, rated their experience as
‘positive’, while only 15 per cent reporting a negative experience.
According to an UnumProvident survey published in March 2007:
• T
 he sectors that registered the highest level of mental health
related illness were public administration, education and
health, while the lowest level was found in construction.
• T
 en million working days were lost due to stress, depression
and anxiety in 2005/06.

41
Appendix 4
What are mental health problems?
It is important to distinguish between mild and
moderate mental health problems – which are
common and which union reps are likely to
encounter regularly among members – and
severe mental health problems, which they are
much less likely to encounter.
Everybody responds differently to the stresses and strains
of modern life and it is common to describe ourselves as
‘depressed’, ‘stressed’ or ‘anxious’ at times. For some, these
feelings can become serious enough to make it difficult to carry
on with everyday life.

Common mental health problems

These are the ones most likely to be encountered by Union
representatives in their work.
n Stress
Pressure is an essential motivating force but it may become
stress, and therefore a problem, when a person feels they don’t
have the resources to cope with the demands placed upon
them. Symptoms may be emotional (e.g. irritability, tearfulness)
and physical (aches and pains, high blood pressure etc). The
person may find it difficult to make decisions or perform tasks
and may be unable to attend work.
n Depression
Depression is on a spectrum from mild to severe, and is common
in the general and working population. Symptoms include low
mood and a lack of energy. Motivation can be affected and
people may experience thoughts of life not being worth living,
which in extreme cases can lead to suicidal behaviour.

42
 n Anxiety
Anxiety becomes a problem when feelings of tension and fear
prevent a person from carrying out everyday tasks. In extreme
cases people may suffer panic attacks or phobias. Obsessive
Compulsive Disorder (OCD) is a form of anxiety where people
have recurrent, intrusive thoughts, which they may feel ‘forced’
to act on (e.g. fears of contamination leading to repetitive hand
washing).

Other mental health problems

These are much less likely to be encountered by union reps.
n Psychotic conditions/schizophrenia
In contrast to depression and anxiety, which are common in
the general and the working population, psychosis is very
uncommon. Psychosis is a term used when a person appears
to lose touch with reality. People may hear, see or believe things
that aren’t real to others (e.g. hearing voices, thinking that others
are ‘out to get them’). If the illness becomes chronic (long-term)
the person may withdraw from the outside world and neglect
themselves. In these circumstances a psychiatrist may diagnose
schizophrenia. This emphatically does not mean a ‘split
personality’.
It is important to remember, however, that many more people
experience the symptoms of psychosis than actually seek help
for them. Two to three per cent of the population regularly hear
voices but are not troubled by them – or they attribute them to
benign causes such as religious revelation. Some scientists
think of psychosis as being at one end of the normal spectrum
of experience. It is also important to remember that many people
with schizophrenia have the illness under control most of the
time and with the right support are able to lead normal lives –
including being employed.

43
 n Bipolar disorder/manic depressive Illness
Both terms are used to describe this condition, where a
person may ‘swing’ between episodes of extreme low mood
and depressive symptoms to being ‘high’ or elated. During a
manic episode a person may have high energy levels, grand
or unrealistic ideas and become reckless (e.g. taking risks,
overspending). People may go through the mood cycles at
different rates and times.
n Self harm and suicide
People may hurt themselves deliberately in order to deal with
problem emotions. Methods can include self-neglect, cutting,
burning or overdosing. Suicidal behavior may occur when a
person feels they have no other options. It may be a cry for help,
a mistake or a deliberate act.
Each person will experience mental health problems differently,
even if they have the same condition ‘in name’. People with mental
health problems will often employ different techniques to help them
manage their mental health problem, including use of medical
services, secondary mental health support services, counsellors
and getting support from family, friends and colleagues.
n Personality disorders
The Royal College of Psychiatrists states that there are many
types of personality disorder and that they can be difficult
to diagnose accurately. Some people with a diagnosis of a
personality disorder may be covered by the DDA, but this
depends on the type of disorder they have, how it manifests itself
and how this affects their lives.
n In general
Many people with mental health problems will have conditions
that fluctuate, and it may be that they can go for long periods
without having any particular difficulties.
This means that many more people with mental health problems
can obtain and retain employment successfully, provided that
employers are positive about developing an inclusive work
culture that focuses on supportive solutions for individuals and
improving the work environment for everyone.

44
 Published by the TUC
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May 2008

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