Claims of discrimination

All independent schools should be mindful that a mental health condition may be an impairment which is deemed to be a qualifying disability under the Equality Act 2010.

This means that it is important to consider the impact and application of the Equality Act 2010 when managing staff with mental health conditions and to ensure that you are not opening yourselves up to claims of discrimination, which, if successful, could result in potentially unlimited compensation being awarded. The Act applies no matter how many employees you have or how long they have worked for you. The most relevant of the protected characteristics in these circumstances is disability.

Under the Equality Act 2010, a person is deemed as disabled for discrimination law purposes if they have a physical or mental impairment, and the impairment the extent of any reasonable adjustments that might be required. If the case is borderline and/or you are unsure, the safest route would be to proceed on the basis that the employee is disabled.

Interestingly, there have been calls for both menopause and Long COVID to be recognised as conditions that are automatically treated as disabilities under the definition of the Equality Act 2010. To date, this has been rejected by the Government. Despite this, it is possible for these conditions to be considered a disability under the current definitions.

In one of the first landmark Long COVID cases post-pandemic, Burke -vTurning Point Scotland (2021), the Scottish Employment Tribunal determined that Long COVID did amount to a disability.

This case was not binding on other tribunals, but other cases have followed and the same decision has been reached. But outcomes will depend upon the facts of each particular case. Each case will be determined on its own facts and needs to be considered taking into account all available evidence as against the statutory definition.

It is also important to remember that disability discrimination protection under the Equality Act is extensive. Protection extends to claims for indirect discrimination and discrimination for something connected to a disability (although the employer will sometimes be able to justify such discrimination). It may also require employers to make reasonable adjustments to accommodate any disability. This could involve a variety of adjustments, such as allocating some duties to another member of staff or allowing more breaks.

Everything outlined so far emphasises the need to proceed cautiously when managing staff with mental health conditions. There are significant issues affecting the health and wellbeing of those working within the education F