Disability due to mental health - how to demonstrate?

[JB2023]

Hi,

NC for this.

I'm trying to understand how someone can demonstrate that they are disabled under the Equality Act due to mental illness/disorders. I've read the actual description in the Act, but what evidence would I need to provide?

I don't want to or need to claim PIP or anything like that, so can't demonstrate it that way. My main motivation tbh is being confident that my employer cannot fire me if I am signed off sick - my doctor is very willing to do this as I have found an amazing looking mental health/addiction rehab place (I also have issues with alcohol, mainly as a form of self-medication) but it is 5 weeks residential. I haven't yet been at my job for two years (it's been 18 months) and while they've been understanding so far I feel like at this point they would just cut their losses, which they obviously couldn't do if I have a protected characteristic.

For context I have BPD, C-PTSD, OCD, depression and occasional psychosis (hearing things, believing that things happened/didn't happen that can be proven otherwise). I've been sectioned three times for suicide attempts just since being at this employer, plus various hospital stays etc and having time off due to having an extended episode. Frankly I have been a nightmare employee and I'm surprised I'm still there tbh. Nonetheless, I feel I desperately need this residential to get better - they have all forms of therapy (EMDR, DBT, CBT, talking therapy etc etc) plus it would mean just entirely taking myself out of my current situation, work stress etc. Otherwise I know I will eventually lose this job and that will inevitably send me into a spiral I'm not confident I'd survive.

Can a GP write any kind of note to the effect that they believe me to be disabled due to the above? Or is that not how it works? I can't find anything online!

Thanks in advance for any help! And sorry for the length 😬

I'm sorry I don't have an answer for you but my dh is in the same position. He has psychosis and GAD and ive often wondered how to prove he is "mentally disabled".

Did you disclose your diagnoses/confirm you had a disability when you applied for or were offered the post?

This is important with regard to how absences in relation to your disabilities are recorded and the legal protections therein.

Confirming your diagnosis shouldn't be a problem. If your employer has an HR department and onsite Occupational Health, it usually just means permission for them to communicate with your GP to confirm.

Employers can terminate the employment of people who are off long-term sick , but it's the end of a lengthy process, and it only happens when the employer can show that the employee's condition means they can not and never will be able to fulfil the tasks of their role.

Might be worth calling the ACAS helpline to get some more firm advice on your circumstances.

https://www.acas.org.uk/contact

I didn't disclose them because I was nowhere near this bad when I applied. My C-PTSD has ramped up significantly and the psychosis is new. I was diagnosed with a life limiting illness (that also affects me physically pretty badly) just after starting and it's massively affected me.

Occupation health are involved and a report has been requested from my GP.

Re termination of people who are long term off sick, surely that doesn't apply within the first two years? My understanding was that there's no such thing as 'unfair dismissal' until two years so they can terminate at will (unless it is on the basis of a protected characteristic)...

That's an idea actually. I've received very good advice from ACAS previously (re a totally different situation)

Disabled people can still be dismissed.

If occupational health are involved they tend to be asked for an opinion on whether the employee is likely to meet the EA definition of disability.

If there are no reasonable adjustments the employer can make and you are not capable of performing the role, they can dismiss you.

Would you be in a position to ask them for this 5 weeks as unpaid ?

Explain that the aim is to significantly improve your health and wellbeing in the hope of coming back more able to perform your role

Having a disability won’t necessarily protect you from dismissal. But it does entitle you to reasonable adjustments, which may include more flexible sickness triggers.

Have you had a referral to Occ Health? They’ll be able to recommend reasonable adjustments etc and are probably the best starting point.

GPs aren't usually trained in interpreting the Equality Act definition of disability so you would usually be better off with occupational health giving their view on that as they should be.

Thanks everyone, it's appreciated.

I really wouldn't be able to take it unpaid. I'm the breadwinner and the residential thing is pretty much wiping out our savings - it's a kind of last ditch attempt to sort myself out as over the last 18 months in particular I've been lurching from one mental health crisis to the next.

To everyone else - yes, occupational health are involved and are waiting for my GP's report. My manager is already talking about reasonable adjustments - the problem is that at the moment something will trigger my C-PTSD which then exacerbates the self destructive element of my BPD and I barely have any control over what I'm doing (hard to explain but it's almost like a blackout). Then I end up being sectioned or in hospital. It's not something that can be helped with extra breaks from work or anything. Tbh the only thing they could do to help me right now is to approve the time off...

I guess I'll just have to wait and see what occupational health say. One positive is that my company will almost definitely pay me three months gardening leave and/or some kind of financial settlement if they do dismiss me (I know that sounds mercenary but this is a MASSIVE international company with enormous profits so I'm thinking of myself before them tbh)

They're surely not going to give you 5 weeks paid are they!?

Pretty sure I don't get much sick leave.

It's discretionary. I've known people be off for much longer here.

It's a physical or mental impairment lasting or expected to last over 12 months.

You are incorrect in that your employer CAN dismiss you. Having a mental illness is not a reason to not lose your job. However they must be able to show that they have provided reasonable adjustments

Yes I've gathered that now. I'm starting to think that the best outcome is to negotiate me leaving (employer is very risk averse so would almost definitely go the payout and settlement agreement route). I'm not sure this job is helping my mental health so possibly that would be the best option all round. I'm not too bothered about screwing my company over but at the moment being like this I'm screwing my boss over (very small team) and that is something I really do care about. I'm sure they'd be glad to see the back of me...

If your company have been doing everything they should including reasonable adjustments then what grounds have you got to request a payout and settlement from them?

Do you mean negotiate you leaving if they try to dismiss you, or negotiate leaving prior to the 5 weeks treatment?

Obviously you haven’t given much information here but there’s nothing to indicate they have much reason to join a negotiation.

I’d get the doctors note and talk to them about the 5 weeks.

See what the occupational health report suggests before you make self-fulfilling prophecies.

Sounds like you just want to get paid for not working ?
whilst I understand they should make reasonable adjustments to accommodate a disability… you’ve already said there isn’t any and your adjustment is to just not work.
this has been ongoing the same amount of time as your employment (coincidentally?)
I feel for people who genuinely want to work and are disabled and need assistance to continue to be in work but you really sound like you just want to not work and get paid and screw them. companies should be able to dismiss people who cannot do the job after a certain amount of time.

While I sympathise with you for what sound like very difficult MH issues, your attitude is what makes employers reluctant to hire people with long term MH difficulties.

Depends so much on your contract. Unfortunately the attitude of trying for a pay out will make them reluctant to hire people who disclose conditions honestly. If you can't manage your job then leave, or ask for reasonable adjustments and sick leave

i get 6 months full pay. But if I was there the length of time the OP is, I would get 3 months full. I don’t think that is unusual l?

OP you need some really good employee-side employment advice.

Your employer can dismiss you whatever your disability provided they can demonstrate that they have considered and made reasonable adjustments (to any policies, criteria or practices) during your employment. This is usually in relation to your working days, hours or duties, the location of your work or the equipment that your use. Whilst there may be periods of time where you are absent, the employer is entitled to be able to expect you to be able to work productively at any foreseeable point in the future.

If your employer dismisses you got a lack of capability and /or repeated episodes of absence and/or long-term absence, they must pay you notice pay and any accrued but untaken annual leave. I'd say this is your best bet.

So you can be dismissed when you have a disability.

You don't necessarily need a diagnosis for the symptoms of any condition to be classed as a disability in employment terms.

Your employer has to door that they made reasonable adjustments to your working conditions and considered a range of options of which dismissal with notice was one.

With kindness, you can't put a price on your health. In your situation I'd simply tell my employer that I was minded to leave and I'd l you'd like to discuss a settlement. You can expect to be paid your nice pay, your accrued but untaken leave, a little compensation (how long is a piece of string? Enough to incentivise you both to settle amicably anyway, a few thousand tops) and your basic legal fees, say £500 tops.

Then go and get better.

You can expect to be paid your nice pay, your accrued but untaken leave, a little compensation (how long is a piece of string? Enough to incentivise you both to settle amicably anyway, a few thousand tops) and your basic legal fees, say £500 tops.

@OhHolyMoly What are you basing that on? OP hasn’t said anything to indicate she can expect anything like the above, and it’s unfair to mislead her.

OP if you go straight in asking for a settlement agreement you’ll likely be sacrificing your working relationship and may not get what you’re asking for, or even close.

I was explaining what she can expect in a settlement situation from the information she's provided.

Otherwise she can wait to be dismissed and get her notice pay and accrued leave, unless she's contractually entitled to something much better, which I suspect she isn't, because she'd know if she was.

If her health is as bad as she says it is, with sporadic attendance and now long term absence, I think she really needs to prioritise her health over her job - not easy I know.

But I'm being realistic... she could likely lawfully be dismissed but this in itself is often protracted and upsetting.

Like I say, she needs legal advice unless she wants to share every detail about her role, salary, position in the labour market, nature of her condition, employer's policies, the employer's pre-employment health screening process if any and her response to it, absence record, occupational health records, correspondence from her employer etc. because that's what I or anyone else would need, to give a proper and well-informed answer.