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Original poster

Disability due to mental health - how to demonstrate?

35 replies

JB2023 · 12/09/2023 16:10

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 😬

OP posts:
Soontobe60 · 12/09/2023 19:43

OhHolyMoly · 12/09/2023 19:28

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.

Why would they pay any compensation? For what? The OP isnt claiming that her employer is treating her anything but fairly, she has no grounds to take them to a tribunal for unfair / constructive dismissal either.

OhHolyMoly · 12/09/2023 19:48

They may pay her compensation to achieve certainty for both sides.

When you sign a settlement agreement, you give up your right to take your employer to court, and the settlement payment odds, at least in part, compensation for your loss of that right.

If she resigns or is dismissed without a settlement, then the employer runs the risk that she can raise a discrimination or some other narrow classes of claim (even if it's baseless or vexatious) within three months of the end of her employment.

Original poster
JB2023 · 12/09/2023 19:48

Guys - much as I appreciate the advice re employment law etc that's really not what I needed. Without disclosing too much I am directly involved in the process of investigating and deciding settlements (alongside HR though I'm not HR myself, hence not knowing the answer to the question actually posed).

I know my company's attitude which is highly risk averse and cautious even about extremely spurious claims (or indeed no claims but the circumstances suggest there COULD be) due to the industry they work in. 'Negotiating' is probably the wrong word tbh, it is pretty much company policy to make an offer straight off in cases either of dismissal or where they think there may be any kind of ET case or negative publicity (regardless of whether the employee has given any indication that they might pursue that).

My question was about how to demonstrate disability and I've got my answer, so thanks.

OP posts:
PinkFrogss · 12/09/2023 19:50

Fair enough OP, hope it all works out for you Flowers

Original poster
JB2023 · 12/09/2023 19:50

OhHolyMoly · 12/09/2023 19:48

They may pay her compensation to achieve certainty for both sides.

When you sign a settlement agreement, you give up your right to take your employer to court, and the settlement payment odds, at least in part, compensation for your loss of that right.

If she resigns or is dismissed without a settlement, then the employer runs the risk that she can raise a discrimination or some other narrow classes of claim (even if it's baseless or vexatious) within three months of the end of her employment.

You've basically summarised my company's approach in this and your previous post. There is no chance they wouldn't incentivise me to sign a settlement agreement, none at all.

OP posts:
PeanutContinuum · 12/09/2023 20:00

Hi OP

Sorry to hear you’ve been so unwell. You have diagnoses of significant illness and evidence of treatments so I don’t think you need to worry about any further proof.

Before you make any decisions or talk to your employer, if you aren’t already in touch, perhaps have a talk with the mental health charities eg Rethink or Mind and the Citizens Advice Bureau. There are helplines and usually local groups.

It won’t be the same level of employment advice as ACAS but they should be able to advise you on some things and will also understand your experiences, and be able to discuss things like whether you could or need to claim the sick pay element of Universal Credit if you have to stop working and need to replace some of your income. They can be a great support and help to think things through in general. They may know of local resources that you haven’t been put in touch with for example.

www.rethink.org

Www.Mind.org.uk

hope you get some support and can stabilise.

Photio · 12/09/2023 20:01

So for a condition to be classed as a disability it has to last at least 12 months AND it has to affect your ordinary everyday, functioning.

If you look at the kind of questions the PIP form asks those are the indicators for everyday activities.
So you need to get your HCP to write a report on how your health condition affects you in those areas and that will be sufficient to demonstrate a disability

WorkingItOutAsIGo · 12/09/2023 20:13

do you have private health care with your job? I know two people who have had much longer rehab than yours covered by this and their jobs kept for them.

I wish you much luck with your recovery xx

OhHolyMoly · 12/09/2023 20:27

Indeed OP, and whilst you're clearer about your condition and whether it can be classed as a disability, you did essentially ask for reassurance that in this case your employer couldn't, or wouldn't dismiss you on health grounds or, for example, poor attendance.

So in summary, yes, your conditions are likely to be classed as disabilities; and,

Unfortunately no, no-one can reassure you that you won't be dismissed under these circumstances.

Now if settlement agreement is in please then Fair enough, but the outcome of that is that you end up with no job.

I wish you all the best OP, and mainly I wish for good health for you x

Bluewitch · 17/09/2023 14:32

I can tell what I did:

  • disclosed mental health issues to HR (long standing depression, panic attacks, PTSD due to sexual assault) and I also had to disclose that to my manager
  • Basically the company had recruited me (after Covid lockdowns) on the agreement that I would work remotely and may commute to work (more than two hours commute each way) only once a month or even once every three months
  • Then six month into the job they pushed me to come in every week simply to ''show my face''...
  • At that point I declared the disability to HR and reminded them that this was not what we had agreed when I took the job and that remote working was needed as a reasonable adjustment. They backtracked and I am continuing to work from home
  • I can completely understand why people don't declare mental health issues from the start because it carries a stigma and I have seen people treated who had mental health issues treated appallingly by employers
  • I receive PIP which documents my issues with travelling in public transport and panic attacks that result and my GP has my medical history of trauma counselling, assault and so on so there is evidence if needed
  • I just had a major relapse in my mental health and had a breakdown last week so I am about to send in the sick note that the GP has given me and I also do wonder what the employer's reaction is going to be. Longer term I am looking at leaving this job and getting something that is fully remote from the start or a local role that won't involved travelling. The way the workplace cornered me into declaring my mental health issues (which included having to talk about my assault to a manager) did had a lot to my stress and probably was one of the causes that brought on what happened to me last week.

Of course you can be dismissed for any legal reasons especially if you cannot do the job but the employer also has to trade very carefully when a disability, which includes long term mental health issues that affect your daily life, is involved because if they don't at least offer support and consider reasonable adjustments you would have a case for unfair dismissal.

Have you asked if you could work part-time? work from home? get a job share or maybe move to another less stressful role in the organisation?

Or if you just don't like the job anymore indeed do your best to get them to pay you a settlement.

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