Under the Act, a mental impairment is defined as one ‘resulting from or consisting of a mental illness, only if the illness is a clinically well recognised illness’. It is likely that any mental illness classified under the DSM or ICD classifications would be considered to be ‘well recognised’. Addictive behaviours and behavioural and antisocial disorders are not.
The Act’s protection applies to those disabilities which have lasted or are likely to last for 12 months or more. In addition, they must have
‘a substantial and adverse effect’ upon the carrying out of at least one of the normal day-to-day activities listed in Schedule 1 of the Act. These include ‘memory or ability to concentrate, learn or understand’, but do not necessarily apply only to the workplace.
One of the earliest successful applications to an industrial tribunal concerned chronic fatigue syndrome. It was successful as it is defined by the World Health Organization (WHO) as a separate neurological disorder and is recognised by the Royal Colleges of Psychiatrists, Physicians and General Practitioners as a seriously debilitating and genuine disorder. Whether it is psychiatric or neurological is not at issue – there is a resulting disability.
Whether or not a person with a clinically well-recognised mental illness is an applicant or an employee, employers are under an obligation to ‘make reasonable adjustments to the workplace’. Reasonable adjust-ments can focus on the individual, such as requiring him or her to take a holiday, rest away from work, time off for treatment, training or redeployment, avoiding shift work or stressful tasks, the introduction of a mentoring system, and arrangements for a visiting psychiatrist or for supervision by the occupational health service.
The Employment Appeal Tribunal (EAT) in the case of Morgan v.
Staffordshire University (2002) held that tribunals will expect a more focused diagnosis than ‘stress’, ‘depression’ or ‘anxiety’ before they will be prepared to accept that the individual has a mental illness. In this case, Mrs Morgan’s general practitioner had certified that she was suffering from ‘stress’. The EAT held that:
‘As the WHO ICD does not use such terms, without qualification, and there is no general acceptance of such loose terms, it is not the case that some loose description such as “anxiety ”, “stress” or “depression” of itself will suffice.… Whilst the words “anxiety”, “stress” and “depression” could be dug at intervals out of the copies of the medical notes put before the Tribunal, it is not the case that their occasional use, even by medical men, will, without further explanation, amount to proof of a mental impairment within the Act, still less as its proof as at some particular time. Even G.P.s, we suspect, sometimes use such terms without having a technical meaning in mind and none of the notes, without further explanation, can be read as
intending to indicate the presence of a classified or classifiable mental illness, either after the exacerbating events of the assault proceedings were over or at all. Indeed, the notes of the Professor of Psychiatry, possibly the most authoritative although speaking of a distant time, suggest its absence.
There was no evidence from any doctor to explain what he had meant at the time his note was made, nor to assert that Mrs Morgan was at any time mentally impaired within the Act. Without our here setting out further extracts from the WHO ICD, we notice that the work shows at many parts of its classification that specific symptoms, often required to be manifest over a minimum specified period or with a minimum specified frequency, are required if a claimant relies upon falling within it.’
Finally, it is not for the tribunals to decide whether or not someone has a mental illness where there is clear medical evidence (Box 2.4).
References
Health and Safety Executive (1982) Guidance Note MS 20 – Pre-employment Health Screening. London: HSE.
––– (1988) Mental Health in the Workplace. London: HSE.
––– (1993) Mental Distress at Work. London: HSE.
––– (1995) Stress at Work. London: HSE.
––– (2001) Tackling Work-Related Stress. London: HSE.
Box 2.4 The Kapadia case
(Kapadia v. London Borough of Lambeth)
Mr Kapadia, an accountant at Lambeth, had been diagnosed by his doctor as having reactive depression. He had been in and out of hospital and had received counselling for over two years. He was ultimately dismissed as being medically unfit to perform his duties. He brought a claim for unlawful discrimination for a reason relating to his disability. The employment tribunal found that his mental impairment did not have a substantial impact upon the carrying out of normal day-to-day activities and therefore dismissed his claim.
The Court of Appeal found that the employment tribunal had erred in law in finding that the applicant’s mental impairment did not have a substantial adverse effect on his normal day-to-day activities in circumstances in which there was uncontested medical evidence that his anxiety, neuroses and depression would have had such an effect but for the fact that he had received medical treatment.
The employment tribunal was obliged to come to the conclusion that the applicant had proved his case given that there was direct evidence from two medical experts that there was an underlying disability which was concealed by the medical treatment. There was no contrary expert medical evidence or challenge to the factual bases of those opinions.
D’AURIA ET AL
Jones, G. (1970) Restitution of benefits obtained in breach of another’s confidence.
LQR, 86, 463.
Law Commission (1981) Breach of Confidence, report no. 110, cmd 8388. London:
HMSO.
Cases
East Lindsey District Council v. Daubney [1977] IRLR 181.
Kapadia v. London Borough of Lambeth [2000] IRLR 699.
Lion Laboratories v. Evans [1984] 2 All ER 417 at 433.
London Borough of Hammersmith and Fulham v. Farnsworth [2000] IRLR 691.
McNally v. Welltrade International Ltd [1978] IRLR 497.
Morgan v. Staffordshire University [2002] IRLR 190.
MSB v. Sweden 23 EHRR 313, European Court of Human Rights.
O’Brien v. The Prudential Assurance Company Ltd [1979] IRLR 140.
Sutherland and Hatton v. Somerset County Council; Barker v. Somerset County Council;
Bishop v. Baker Refractories Ltd; Jones v. Sandwell Metropolitan Borough Council [2002]
EWCA Civ. 76; CA Civil Division.
W v. Edgell [1990] 1 All ER 835 at 846 (CA).
Walker v. Northumberland County Council [1995] IRLR 35; QB.
Walton v. TAC Construction Materials [1981] IRLR 357.
Risk management approach to mental health:
the London Electricity case study
Anne Margaret Samuel
Introduction
London Electricity has taken a holistic approach to the management of mental ill health at work by ensuring that it forms part of an overall health and safety risk management strategy. This approach aims to destigmatise mental illness while ensuring that its impact on human behaviour is taken fully into account in the management of health and safety risks. Consequently the management of mental health forms one of the modules of the health risk management programme developed by London Electricity called ‘Fit For Work’.
This programme requires the company to take an ‘upstream’, preventive approach to managing occupational health risks, rather than a more traditional ‘downstream’, reactive approach, which relies on treatment, rehabilitation and ill-health retirement to manage occu-pational ill health. However, to be successful, the preventive approach requires the right culture in which to thrive and, critically, it must have the commitment and support of senior managers. This is not only to ensure that the right values and behaviours are exhibited by senior managers and those who report to them, but also to ensure that employees are encouraged to attend training sessions designed to inform them about the potential occupational health and safety risks to which they are exposed.
The rationale behind this approach is to reduce costs, in terms of both the suffering of individual employees and the ‘bottom line’ of business finances. During training for managers, inverted pyramids (Figure 3.1) are used to drive home the point about how to manage mental ill health at work. Clearly there are also cost implications in successfully implementing a health risk management programme such as Fit For Work. Staff have to be released for awareness training and provision has to be made for any necessary control measures emanating from the risk assessments. These costs are very apparent to managers because they have to budget for them upfront. However, when compared
SAMUEL
with the less visible, but no less real, costs of medical management, ill health retirement and litigation, the costs of implementing a health risk management programme appear a prudent investment.