Allied Health Professions: disclosure guidance

6 Disclosure Of Mental Health Conditions, Learning Disabilities Or Learning Difficulties

There is no legislation which states that individuals are required to disclose any information about their mental health, or any learning disability or learning difficulty they experience, to employers. However, if individuals do decide to disclose there can be advantages in terms of the protections provided by the Equality Act 2010.

6.1 The Equality Act 2010

The Equality Act 2010 protects certain groups from harassment, direct discrimination, indirect discrimination and/or victimisation from the outset of employment, education or if they are in receipt of a service. There are certain positive rights and benefits people can obtain by bringing themselves under the Equality Act by disclosing a mental illness.

6.1.1 Protected Groups

It is against the law to discriminate against anyone based on the following characteristics (known as "protected characteristics"): sex, marriage/civil partnership, race/colour/nationality or ethnic origin, pregnancy/maternity, gender reassignment, sexual orientation, religion/belief, age, and disability (including mental health). For the purposes of disability, to be afforded protections under the act, the individual must meet the definition of disability outlined in the Act and explained below.

Example

The Equality Act 2010 does not make specific provision protecting those with spent convictions from discrimination. Section 4 of the Rehabilitation of Offenders Act 1974 means that in many cases job applicants do not need to tell an employer about criminal convictions that are spent. If the applicant has any of the protected characteristics i.e. disability due to a mental health condition, the Equality Act 2010 is relevant in the context of that characteristic.

For paid employment, employees or potential employees would be protected within the recruitment stage of the employment process. Volunteering is not generally covered by the Equality Act 2010 however, some volunteer opportunities may be covered by the Act, for example vocational training opportunities, or situations in which an organisation uses volunteering as a way to assess an individual's suitability for employment. Independent legal advice should be sought in individual cases. For further information on volunteering and the law, the Volunteer Scotland Website holds useful information.

6.2 Disability under the Equality Act 2010

For the applicant to be afforded rights under the Act, it needs to be demonstrated that the person is defined as disabled under the Act. There is no definitive tool which can identify if someone has a disability. In the case of any dispute, a tribunal would make the final decision. There are definitive tools which assist in the assessment and identification of Learning Disability and Health Boards will use a variety of these. Individuals may have a learning disability, a mental illness and criminal offences making their need for input from AHPs, Registered Nurses Learning Disabilities (RNLDs) and third sector organisations all the more paramount.

6.2.1 Definition of 'Disability' under the Equality Act (2010)

Disability is defined as: A mental or physical impairment that has a substantial and long term adverse effect on a person's ability to carry out normal day to day activities (Equality Act, 2010).

Definition of disability as used in Scotland: A learning disability is significant and lifelong. It starts before adulthood and affects a person's development. This means that a person with a learning disability will be likely to need help to understand information, learn skills and live a fulfilling life. Some people with learning disabilities will also have healthcare needs and require support to communicate. Please see the Scottish Government The Key's to Life Policy for more information.

Substantial Adverse Effect is defined as someone having difficulties beyond what you think is normal. "Substantial" means more than minor or trivial. Consider the time taken to carry out an activity, the way in which it is carried out and any alterations or any cumulative effects. For example, the individual can manage one task but cumulative tasks can be difficult. Consider tasks they avoid or have stopped due to the impairment. If it seems unreasonable in comparison to others, it could be argued they come under the definition of disability.

Long Term Adverse Effectis defined as an effect which has lasted at least 12 months or where the total period of which the disability lasts is likely to be 12 months (this does not have to be consistent for 12 months but the cumulative total should be 12 months at least). If someone has been in hospital for 1 year you could argue the problem is long term but this is dependent on why they have been in hospital. The substantial and long term adverse effect is assessed by removing the impact of treatment. Therefore, consider if there would be a disability if the treatment was removed? Treatment includes medication, psychological therapies, occupational therapy etc.

It is also worth noting several key terms under the disability section of the Act that affect what is and isn't included under this section:

• Progressive Conditions: individuals with progressive conditions which increase in severity over time are regarded as having an impairment with a substantial adverse effect as soon as there is some adverse effect on their ability to carry out normal day-to-day activities, provided that in the future the adverse effect is likely to be substantial.
• Impairment caused by medication: can also bring the individual under the definition of disability.
• Entitled Conditions: Some conditions bring a person within the definition of disability immediately and are therefore covered by the Act from the point of diagnosis, without there being a need to clarify or further provide evidence of impairment with a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. These conditions are as follows:
  • Cancer
  • HIV
  • Multiple sclerosis
  • Blindness or sight impairment (although not impairment that can be corrected by glasses or contact lenses)
• Unconfirmed Diagnosis: For an unconfirmed diagnosis, or where it is unclear, the description of the effect of impairment can bring an individual under the definition of disability.
• Excluded Conditions: Substance misuseand criminal behaviours are excluded conditions, even when they are a manifestation of the impairment. But if an individual has the above and a mental illness and meets the definition of disability, they will be afforded protection under the Act due to their mental illness.
• Previous Disabilities: A person who previously had a disability but no longer has it, is still afforded protections under the Act as a person with a past disability. In order for a past condition to count as a disability, its effects may be viewed as long-term if they lasted 12 months or more after the first occurrence, or if a recurrence happened or continued until more than 12 months after the first occurrence.

6.3 Protections Provided by the Equality Act 2010

If an individual is defined as disabled under the Act, or has one of the other protected characteristics specified in the Act and informs the employer of this, they will be afforded protection in relation to that characteristic from:

• Direct Discrimination
• Indirect Discrimination
• Harassment
• Victimisation

Direct Discrimination: Treating a worker less favourably than another worker due to a protected characteristic. For example, an employer withdrawing a job offer due to the individual revealing that they have a bipolar diagnosis in response to a health questionnaire. A less experienced individual is promoted instead of a more experienced individual, after it became known following sickness absence that the more experienced individual has schizophrenia. Disciplining someone for poor time keeping which is inconsistent with their usual performance due to deterioration in their health condition or change in medication related to their disability.

Indirect Discrimination: The employer imposes a rule or system which applies to all workers but which has a discriminatory impact on a group with a protected characteristic, putting that group at a particular disadvantage compared to others. For example,an employer has a practice of regularly requiring staff to work late or skip breaks if something urgent happens. This may disadvantage disproportionately someone with a mental health condition that requires careful management in terms of routine/ work life balance/ suitable breaks etc.

Harassment: Subjecting a worker to unwanted conduct for reasons related to a protected characteristic, which has the purpose or effect of violating that person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. This includes harassment from the employer or from a third party. In the case of a third party harassing an employee, the employer has a responsibility to take action but the individual harassed must ensure that the harassment is reported to the employer.

Victimisation: When an employee is subject to negative circumstances because she/ he has previously complained about discrimination or harassment in some way on their own behalf or on behalf of others. If an employee feels they have been discriminated against and it cannot be resolved informally, they would have to raise a grievance in writing with the employer and pursue the matter via the employment tribunal. In this case a complaint should be raised with the tribunal within 3 months less one day from the last act of discrimination.

6.4 Pre-employment Health Screening (Section 60 of the Equality Act 2010)

Section 60 of the Equality Act 2010 gives guidance on the way employers can seek information about an applicant's health prior to making a decision to offer them a job.

It is unlawful for an employer to ask any job applicant about their health or disabilities during the short listing and interview process. Likewise, there is no obligation for an employee to disclose to an employer if they have a disability or mental health condition until they have been offered a job.

However, there are occasions where disclosure may happen for example:

• An individual has to answer a question posed by employer in good faith which leads to disclosure
• There may be times it is necessary for reasons connected to the intrinsic requirements of the job. i.e. the duties an individual requires to undertake involve driving heavy machinery and the medication the individual is prescribed does not permit this.
• It is advisable or necessary to disclose for example, to obtain benefits under the Equality Act 2010.

This process aims to clarify if the withdrawal of a job offer is due to health issues. If there is no other explanation for the withdrawal and it was due to disclosure of a disability then the withdrawal will amount to direct discrimination. If an offer is withdrawn on grounds of sickness absence that is disability or health-related this also amounts to discrimination. If the employer has other reasons then these may be investigated.

Therefore employers should not:

• Ask about health / history of health / disability or sickness record at or before interview via discussion or health questionnaire prior to a job offer.
• Ask questions on an application form asking about a prospective employee's health, history re health/ disability, sickness absence record or declaring health conditions. (Note that questions about disability and health can be asked separately for purposes of monitoring the diversity of applicants.)
• Ask questions on any of the above at interview.
• Request that an employee speak with occupational health prior to interview and job offer.
• Seek references in advance of interview with requests for information re health and sickness.
• Once a job is offered, or a pool of people are identified, then enquiries can be made about health issues.
• An offer can be conditional or unconditional for example, after completion of references/ health questionnaires, but there should be no discrimination on the basis of the information supplied.
• The employer has a responsibility to consider reasonable adjustments before withdrawing a job offer.

This does not preclude potential employees providing information to the interviewer about illness but the employer should limit the discussion on the basis that any exploration at this stage is unlawful from the employer's perspective unless it relates to an intrinsic function of the job. Occupational Therapists may wish to encourage clients to anticipate an employer's response and plan for this.

For frequently asked questions on Disclosure of Mental Health Conditions / Learning Disabilities please see Annex A.

6.5 Reasonable Adjustments

Reasonable adjustments can be a key tool for removing barriers that might prevent someone from carrying out their job as compared with an employee without a disability. For an individual covered by the Equality Act, if they make the employer aware of their disability, it is the duty of the employer to make reasonable adjustments should they be offered the job. This is one of the key benefits to disclosing a disability. The protection does not arise unless the employer knows the situation.

It is the duty of the employer not to treat people with disabilities unfavourably because of something connected with their disability. Therefore if the individual's offence was in the context of illness you could request this be considered through a covering letter or personal statement which can help to highlight disclosure positively.

6.5.1 What is considered to be reasonable?

In deciding if an adjustment is reasonable, consideration should be given to how effective the adjustment would be in removing the disadvantage related to disability, how practicable adjustments would be, costs, length of time to make adjustments and how disruptive adjustments would be to others. Reasonable adjustments are specific to an individual person. What is considered reasonable may vary according to the circumstances of the employer. Adjustments should be reviewed within agreed timescales.

Examples of reasonable adjustments include:

• A transfer to an existing vacancy including any need for re-training
• Altering work hours
• Redeployment or relocation to a different place of work which is accessible or arranging home working
• Allowing absences for rehabilitation, assessment or treatment
• Arranging training or mentoring
• Acquiring or modifying equipment
• Moving a work station nearer a toilet or away from something i.e. noise, light heat etc.
• Changes to start and finish times
• Increased supervision or support
• Changes to role
• Phased return to work
• Allowing a period of disability leave. If the individual discloses a disability, the employer could make reasonable adjustments to not count these periods of illness in their sick leave total, in cases where a certain number of absences trigger a referral to occupational health. It is important to note that there are different ways in which employers approach disability leave. Appropriate measures and adjustments should be made to accommodate such leave.

Adjustments can be short and long term, are often small and uncomplicated and may not cost a lot. They should be reviewed as often as deemed appropriate.

Please see the FAQ in Annex A for more information on the Occupational Therapist's role in considering reasonable adjustments.

Overview:

Summary of Process

1. Discuss benefits of positive disclosure of health conditions and criminal convictions with person.

2. Create evidence to demonstrate individual meets criteria of a protected group. E.g. assessing impact of mental health on function report from occupational therapist and letter from psychiatrist confirming diagnosis.

3. Support person to raise grievance if unsatisfactory outcome and person wishes to pursue.

4. Make a request in writing with recommendations of reasonable adjustments including timescales.

5. Support person to raise grievance if unsatisfactory outcome and person wishes to pursue.