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When should you disclose a mental illness to an employer or potential employer? Are you legally obliged to?
No, an employee or job candidate is not legally obliged to mention any medical condition, whether mental or not to an employer. Mental illness in particular is a very personal thing and it can be difficult to talk about even to your nearest and dearest, let alone an employer. There can be benefits to being open about your illness but deciding whether or not to tell your employer can be difficult. If you do decide to tell, think about:
Ultimately, it’s your choice – disclosure of mental health issues at work is a personal choice, and you can say as much or as little as you want. If you need more support, being open can help you get it.
If applying for a job at what stage should you consider disclosing a mental illness?
Generally, employers cannot ask you questions about your mental health before a job offer is made. But if you feel that your mental illness will impact your interview process, and that you would benefit from adjustments to the procedure or to the interview itself, then it would be sensible for you to raise this in the application stage. An employer is entitled to ask relevant questions about your health to find out if you have a disability or if there are any adjustments you might need to the application process. Additionally, they are entitled to ask questions to determine whether you will be able to carry out the job role.
Do you have to disclose prior episodes of depression, anxiety or stress if these are no longer current issues for you? I had an eating disorder as a teen, do I need to disclose this now I am in my 40s?
If you have a past history of mental illness but you are not currently affected, again, you are not required to disclose this to your employer. However, if your mental illness is likely to be a recurring one, and you lie about your condition at the interview stage and state in a health questionnaire that you do not have any medical condition(s) which would affect your work, but then upon beginning work you find that your illness is affecting your performance at work, then the employer could argue that there has been a breach of the duty of mutual trust and confidence. If this leads to a dismissal (which the employer has implemented on a legitimate and procedural basis) then the employer could defend its position by arguing the reason for the dismissal was not connected to any disability (since you did not disclose it to them).
What are the implications of disclosing a mental illness, both from your perspective and your employer’s?
Disclosing a mental illness can have both positive and negative implications. Unfortunately, the wide-ranging and numerous places of work coupled with the subjectivity of mental illness means that there is no set result as to how your disclosure will impact you. However, more recently social stigmas surrounding mental health have changed, with even Prince William inspiring people to be open about their emotions and for workplaces to bring about a change in culture. As a result, mental health is high on most employers’ radar these days and it is no longer a subject that gets hastily swept under the carpet. Generally speaking, if an employee chooses to be honest regarding their mental health then this will allow the employer to support them in a timely and appropriate manner. In the same vein, an employer will appreciate an employee opting to trust them and should be grateful that they have been given the opportunity to help their employees perform as best as possible. By increasing awareness and knowledge within the workplace, employers can change attitudes and improve support within organisations.
What are your legal rights and protections if you feel you are being discriminated against as a result of disclosing?
If your mental health problem is a disability and there is a feature of your work which is causing you major disadvantage because of this disability, then your employer is under a duty to make adjustment(s) to avoid that disadvantage.
Examples of adjustments you could ask for include:
The adjustments have to be ones that are reasonable for your employer to make. Whether a change is reasonable or not depends on the circumstances of each case, but may include:
If you feel like you are being treated differently as a result of your disability, then depending on the circumstances, you may be entitled to bring a claim for direct or indirect disability discrimination in the employment tribunal.
What are the implications of not disclosing?
As discussed earlier, if you lie about a condition and it transpires that your performance is significantly affected, or if you are required to take long periods of absence from work due to that condition, your employer may decide to terminate your employment. The challenge for the employer is whether they can prove that the lie justified termination and that the dismissal is not discriminatory.
What is a mental illness in the eyes of the law and when is mental illness considered to be a disability?
Legally, an employee has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (i.e. not just their job activities). For instance, some individuals with depression or anxiety find rush hour travel on public transport unbearable.
Sometimes an employer may accept what an employee says without asking for more information. Because mental health problems aren’t visible, it may be hard to explain your situation to your employer. It can be helpful to have a note from your doctor or another professional to explain:
Are you obliged to answer employer health check questionnaires after you have been offered the job but before you start? or when in employment?
Generally, an organised employer will provide a health questionnaire once a job offer has been made and accepted. This form allows employers to determine if the incoming employee suffers from any medical condition(s) which could affect their ability to perform the role, and which could warrant adjustments being made to assist them in their role. A simple example could be an employee with ongoing back problems that may need a special chair or someone with vision problems who needs a larger computer screen. Generally you would only disclose conditions that could affect your role, and which may warrant a consideration of adjustments. Employers expect honesty so if there is a reasonable probability that your mental health will impact on your ability to do your job then you should disclose it.
With thanks to Lara Keenan, partner and Sophie Rothwell, trainee solicitor at Child & Child
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