Disability discrimination disputes in workplaces are surging as employers struggle to get to grips with mental health issues among staff, according to Nockolds, the leading law firm.
An analysis of data obtained from Acas, the workplace conciliation and arbitration service run by the Government, reveals that while employment tribunal claims sent to Acas for early conciliation increased by 7 percent over the last two years, from 31,198 to 33,501, disability discrimination claims sent for conciliation have surged by 30 percent, from 6,545 to 8,496. Disability discrimination claims now comprise a quarter of the total number of claims referred to Acas for conciliation.
Nockolds explains that early conciliation is when Acas talks to both employer and employee about the dispute, with the intention of facilitating an agreement without having to issue Employment Tribunal proceedings.
According to Nockolds, the surge in disability discrimination claims being referred to Acas reflects a growing number of mental health issues being classified as disabilities in a way which would not have been considered the norm a few years ago.
Joanna Sutton, Principal Associate at Nockolds, comments: “While awareness about mental health issues has increased, in many cases workplace policies have lagged behind. At the same time, employers have been putting more pressure on employees to return to the office and improve productivity. This is fuelling workplace disputes.”
“The first Disability Discrimination Act, which dates from 1995, made it explicit that a disability can be both a physical and mental impairment, but a widespread misconception persists that protection is intended for those primarily with physical disabilities. The internationally recognised symbol for disability is a person in a wheelchair, which tends to reinforce that view.”
She adds: “When the Disability Discrimination Act was amended in 2005, the focus was on workplaces installing wheelchair ramps and having lift access. It has taken another decade and more for the phrase ‘not all disabilities are visible’ to become widely recognised.”
The Equality Act 2010 now defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day to day activities.
Nockolds says that despite growing awareness of non-visible disabilities, which many conscientious employers have adapted to, the definition of mental impairment continued to catch many employers off-guard.
Joanna Sutton says: “Most people would recognise dementia or schizophrenia as serious mental disorders but there is growing acceptance that more nebulous conditions such as depression or menopause can be classed as disabilities for employment law purposes. Part of the problem is that whether a condition has a “substantial and long term adverse effect” on an individual will differ from person to person and so whether the impact is significant enough to amount to a disability can only be determined on a case by case basis This opens the door for unscrupulous employees to try to take advantage and deceive their employers but can also lead to unsympathetic employers dismissing genuine mental illness, with the risk of Employment Tribunal claims ensuing as a result.”
Disability discrimination cases received from employment tribunals for conciliation
Nockolds says that the surge in disability discrimination disputes suggests that HR professionals and line managers need better training on managing and supporting the mental wellbeing of staff. It is likely that many managers have insufficient understanding of how the law relates to mental health and are not doing enough to create a supportive environment to encourage staff to talk openly about mental health, but also how to manage any disclosures that employees may make to them.
Joanna Sutton says: ““It is clear from the surge in claims that organisations need to give higher priority to mental health awareness. HR and line managers are less likely to fall foul of the law if protocols are in place and adhered to. That means regularly reviewing mental health and wellbeing policies and ensuring that knowledge and skills are maintained.”
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