Mental health discrimination at work

A mental health condition becomes a legal disability when it has a substantial, long-term effect on day-to-day life. Your employer must then make reasonable adjustments and must not penalise you for something arising from the condition. Applying the standard policy to absence, dress rules or performance is not enough.

Is my condition a disability?

The Equality Act 2010 s.6 asks three questions about how your condition affects you. No particular illness automatically qualifies or rules you out.

First, do you have a mental impairment? Depression, generalised anxiety, PTSD, bipolar disorder, schizophrenia, eating disorders, OCD and many personality disorders can qualify. Stress on its own is not a diagnosis. Tribunals look for the underlying impairment.

Second, does it have a substantial adverse effect on normal day-to-day activities? Substantial means more than minor. Sleep, concentration, getting dressed, shopping, travelling, social interaction and staying focused at a desk all count. The test ignores medication. If antidepressants or therapy keep you functioning, the law judges you as if you were not taking them.

Third, is it long-term? That means it has lasted at least 12 months, is likely to last at least 12 months, or is likely to last for life. Episodes that come and go still qualify if they are likely to recur, as with recurrent depression.

Addiction to alcohol, nicotine or other substances is expressly excluded, though depression or liver damage caused by addiction can still count. A tendency to steal, set fires or be violent is also excluded.

What counts as discrimination?

“Toxic workplace” is not a legal term. Some toxic behaviour breaks the Equality Act; some does not. The distinction decides what you can claim.

Discrimination arising from disability under s.15 covers dismissal or discipline for sickness absence linked to depression, tearfulness, medication side-effects or a performance dip caused by anxiety. The employer can only defend it as a proportionate way to achieve a legitimate aim. That is a hard test when the employer has never tried adjustments.

Plain bullying with no link to disability, sex, race or another protected characteristic is not Equality Act harassment. It may still be actionable as constructive dismissal, through the implied term of trust and confidence (ERA 1996 s.95(1)(c)), or under health-and-safety law. The Protection from Harassment Act 1997 needs a course of conduct, at least two incidents. It is rarely the right route for ordinary management bullying.

What adjustments can you ask for?

If you are disabled and a rule, a physical feature or a lack of equipment puts you at a substantial disadvantage, your employer must take reasonable steps to remove it. That is the duty in s.20 and Sch.8. You do not pay for adjustments. The employer can only escape liability if it did not know, and could not reasonably have been expected to know, you were disabled.

You do not have to say the word “disabled”. A fit note suggesting reduced hours, an occupational health report mentioning panic attacks, or repeated absence with GP certificates can give the employer constructive knowledge. If you say nothing, a claim is far harder.

The adjustment should address the problem your condition causes at work.

If rush-hour travel triggers panic, altered hours or start times may help. Other options include hybrid or home working for part of the week, a quieter desk, permission to wear noise-cancelling headphones, and extra or more frequent breaks. After absence, you might need a phased return or reallocation of marginal duties such as public-facing cover. A written plan for workload spikes, permission to attend therapy at a fixed weekly slot, a named contact and a stress risk assessment can also help. On absence, Acas advises that disability-related absence can be recorded separately and discounted from trigger points.

What is reasonable depends on the facts. Cost, size of the organisation, disruption and effectiveness all matter. A small shop can refuse what an NHS trust must provide. An employer cannot refuse without considering the request and then call that reasonable. A meeting, an occupational health referral or a trial period gives it a way to assess what works.

Do you have to tell work? Can they ask first?

Once you are in the job, you choose when to disclose. But protection against discrimination arising from disability and the adjustments duty only apply once the employer knows or ought to know. Telling your employer early about the condition, its effects and what helps usually strengthens your position.

Before a job offer, the employer’s questions are restricted. Under s.60 an employer must not ask about health or disability before offering work, except to check you can do an assessment, to arrange adjustments for interview, for diversity monitoring, or where a health requirement is intrinsic to the role. Asking “how many sick days did you take last year?” before an offer is unlawful. The Equality and Human Rights Commission can enforce the ban.

Absence, dismissal and sick pay

Sickness absence linked to a disability needs separate recording, more leeway before trigger points, occupational health input, and adjustments before any warning or dismissal. An employer that mechanically applies a Bradford-score dismissal to depression-related absence risks a s.15 claim.

Dismissal involves two different sets of rights. Unfair dismissal still needs two years’ service until 31 December 2026, and compensation is capped at the lower of £123,543 or a year’s gross pay (limits from 6 April 2026). From 1 January 2027 the qualifying period falls to six months and the cap is removed. Discrimination compensation was never capped. It covers injury to feelings, lost earnings and interest, with no ceiling.

Sick pay changed in April. Statutory Sick Pay is now paid from day one, with no £125-a-week earnings floor. You get the lower of £123.25 a week or 80% of normal weekly earnings, for up to 28 weeks. Self-certify the first seven days, then get a fit note. A doctor, nurse, occupational therapist, pharmacist or physiotherapist can issue one.

Access to Work is a Great Britain scheme, separate from SSP. It can fund practical help such as a support worker, coping-strategy coaching or travel help, up to £69,260 a year for awards made between April 2024 and March 2027. It will not pay for adjustments the employer should provide itself.

Dress codes and appearance

A dress rule can look neutral and still discriminate. A policy that bans head coverings, requires close shaving, mandates high heels or forbids sunglasses indoors can be indirect discrimination on grounds of disability, sex or religion unless the employer can objectively justify it. Justification needs evidence, not preference.

For mental health, ask what adjustment would remove the disadvantage. That might be a relaxed uniform where a fabric triggers sensory distress, permission to wear sunglasses for light sensitivity on medication, or an exemption from clean-shaven rules where shaving worsens dermatillomania or anxiety. Acas expects equivalent standards for men and women and adjustments where a rule causes disadvantage. Religious dress is protected on the same justification test. See our guide on religious dress rules.

Presenteeism, hours and stress

If you feel obliged to stay logged on while ill, your employer may be failing its legal duties. The Working Time Regulations 1998 set a 48-hour average weekly limit, rest breaks and 5.6 weeks’ paid leave. Day-one SSP from April 2026 removed one financial reason to drag yourself in.

Health-and-safety law also requires employers to risk-assess work-related stress and act on it, just as for physical hazards. These duties come from the Management of Health and Safety at Work Regulations 1999 and the HSE Management Standards on demands, control, support, relationships, role and change. The duty applies whether or not anyone is disabled. If you reasonably believe you face serious and imminent danger, you are protected against detriment or dismissal for leaving or refusing to return. No qualifying service is needed.

You can use a flexible-working request to ask for altered start times, compressed hours or remote days. It is a day-one right to request. You can make two requests a year, and the employer must decide within two months. The same arrangement often also works as a reasonable adjustment.

A note on imposter syndrome

Imposter syndrome is the persistent feeling that you are a fraud about to be found out. It is not a medical diagnosis and is not automatically a disability. Perfectionism, over-preparation and dread of exposure only engage the Equality Act where an underlying impairment such as anxiety or depression meets the s.6 test above.

Without an impairment you cannot claim disability discrimination. You can still ask for a stress risk assessment, a workload review, mentoring or a flexible pattern, or raise a grievance about management style. If self-doubt develops into a recognised condition with substantial, long-term effects, you gain the right to adjustments, s.15 protection and uncapped compensation. Describe the effects and duration to your GP. The label alone tells them little.

Who is covered and who is not

Equality Act “employment” is wider than the everyday meaning of the word. Anyone contracted to do work personally is generally covered for discrimination, even if labelled a worker or contractor. Only employees get unfair dismissal and the Acas Code uplift; SSP depends on employed-earner status, so most agency staff on PAYE qualify. The genuinely self-employed sit outside Part 5 of the Act, though Access to Work remains open to them and health-and-safety duties still protect non-employees affected by a business.

What to do, in order

1. Get the evidence together. GP notes, fit notes, prescriptions, OH reports, absence records, the policy applied to you, and a short diary of incidents with dates and witnesses.
2. Ask for adjustments in writing. Name the disadvantage and the fix. Propose a trial. Keep every reply.
3. Raise a grievance if nothing changes. Cite disability, adjustments and the specific treatment. Employers that ignore the Acas Code risk a 25% uplift on any award.
4. Contact Acas early conciliation. Required before most tribunal claims; the window is now up to 12 weeks and pauses the clock.
5. Claim in time. Six months from the act complained of for claims arising on or after 1 October 2026, plus conciliation time. Do not wait for an internal appeal to finish.

Once you show facts from which discrimination could be inferred, the burden shifts and the employer must disprove it. Compensation covers loss and injury to feelings. For a moderate case, such as a depressive episode after a mishandled absence dismissal, the middle Vento band (£12,600-£37,700 for claims from 6 April 2026) applies. Take £18,000 for injury to feelings plus six months’ net lost pay of £14,400. That gives about £32,400 before interest. If the employer unreasonably ignores the Acas Code, the tribunal can add up to 25%, which takes this example to roughly £40,500. There is no fee to claim.

What changed and what is still coming

1. 26 Oct 2024Prevent sexual harassment duty begins

   Employers must take reasonable steps to prevent sexual harassment; EHRC can enforce.

2. 1 Dec 2025Conciliation extended

   Acas early conciliation maximum rises from 6 to 12 weeks.

3. 6 Apr 2026Day-one sick pay

   SSP from day one at £123.25 or 80% of earnings; earnings floor abolished. Vento bands rise.

4. 1 Oct 2026Six-month tribunal limit

   GB employment tribunal time limits double from three to six months.

5. 30 Oct 2026Third-party harassment liability

   Employers liable for harassment by customers; prevention duty rises to all reasonable steps.

6. 1 Jan 2027Dismissal reform

   Unfair dismissal qualifying period falls to six months; compensatory cap removed.

Scotland and Northern Ireland

Scotland follows the same Equality Act rules, Vento bands and SSP rates. Breach-of-contract tribunal claims move to six months on 9 November 2026, not 1 October. Stress-related personal injury can proceed in Scottish courts under Scots procedure.

In Northern Ireland, the Disability Discrimination Act 1995 governs disability discrimination at work, not the Equality Act. The Equality Commission for Northern Ireland enforces it, with conciliation through the Labour Relations Agency. The definition is materially the same. Sick pay parity is confirmed. Day-one SSP at £123.25/80% applies UK-wide. Tribunal time-limit extension and unfair-dismissal reform are Great Britain measures; do not assume they apply in Belfast or Derry without checking current nidirect guidance.