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Disclosing A Mental Health Condition Could Work Against You

June 25, 2010

We live in an empirical society – our general attitude is that things have to be seen to be believed. But how is this affecting people who have mental health problems?

The law only recognises discrimination against people who suffer from mental health conditions if they can prove they fall within the definition of having a “disability” defined as “a physical or mental impairment which has a substantial and long term adverse effect on his [or her] ability to carry out normal day to day activities”.

This is particularly onerous in the case of “invisible” conditions such as anxiety, depression, bipolar disorder, OCD. These cannot be so easily proved, and add to that the mistrust within society as to the alleged over diagnosis of mental health conditions, and achieving justice becomes a struggle.

For example my client, J, is a barrister who has a history of depression. Her condition had been managed by her GP and a psychotherapist and in June 2008, she applied for a position at international law firm, DLA Piper LLP. She was offered the job, which she accepted. J then disclosed her history of depression to the human resources department. The job offer was then withdrawn, which DLA Piper LLP claim was by reason of a recruitment freeze.

J’s case was in the news last week after the employment appeal tribunal said that an original tribunal did not apply the appropriate legal tests in considering whether J was disabled. But even in finding in her favour, the appeal tribunal declined the opportunity to clarify the law for mental health claimants to enable them greater access to justice. Now J will have to have another hearing to determine whether she has protection under the Disability Discrimination Act (DDA) before a tribunal can go on to consider whether her job was withdrawn because of a recruitment freeze, or because of her disclosure of depression.

What these hearings mean for someone like J is having all her medical records reviewed time after time by different panels just to decide whether she is covered by disability law. The time and cost of getting to this point is usually substantial – in J’s case she was fortunate enough to receive some funding from the Equality and Human Rights Commission, who recognised the importance in obtaining clarity on these issues.

A survey last year by Time To Change, who campaign to end mental health stigma, found that 92% of Britons felt that their job prospects would be curtailed if they were to disclose a mental health condition. The DDA needs to protect those very individuals who do make the brave decision to disclose a mental health condition, but at present one must prepare for a hard struggle to make use of that protection. It’s time to confront these issues openly and consider how else we can work towards a fairer system that seeks to include those with a mental health condition, and to give them the basic fallback protection under the law. Surely the purpose of discrimination legislation is to afford dignity to all individuals – why then is the process of establishing a mental health condition so undignified?

Kiran Daurka is a solicitor in the employment team at Russell Jones & Walker

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