Paul Daniels, partner, Russell Jones & Walker
Opinion: The mental health stigma in the workplace
Cheltenham Borough Council recently lost a controversial High Court action against its former managing director Christine Laird.
Paul Daniels
The decision raises many interesting issues. First, how much information must be disclosed to a prospective employer on a candidate’s medical history? Second, is it discriminatory for an employer to make decisions based solely on information provided in a medical questionnaire? And finally, what degree of sensitivity is there about disclosing a mental health condition to a prospective employer?
The council sued Laird for almost £1m, alleging she had responded fraudulently to questions on a pre-employment medical questionnaire. Laird was passed fit for the post by the council’s occupational health service, following the answers she provided in the questionnaire.
Unfortunately, Laird’s relationship with the leader and senior officers of the council deteriorated significantly within a year of her appointment, numerous grievances were raised by her and she was eventually granted ill-health retirement.
Prior to her application for the post, Laird suffered from anxiety and depression, from which she had made a recovery. In response to the question ‘Do you normally enjoy good health?’, she therefore replied ‘Yes’; and to the question ‘Do you have a mental impairment?’, she replied ‘No’. The council stated that had it known about Laird’s past medical history, it would never have employed her. The High Court rejected the claim as it found that Laird had answered the questions honestly.
One in four adults in the UK suffer from a mental health condition at some point in their lives. In some cases, it may be a short period of reactive depression. In others, it may be more long-term and chronic. In the current climate, City professionals, including lawyers, are feeling increased levels of stress and anxiety not only related to the demands of their roles but also uncertainty about the future. Some of them will seek advice, assistance and possibly treatment, which may include medication and counselling, and some may develop significant mental health problems due to their treatment at work.
owever, once they have been properly treated, most of these employees would answer questions about their health as Laird did.
Unfortunately, there is still a high level of stigma attached to mental health conditions. Many people do not disclose details even to friends, let alone to an employer. An employee is more likely to disclose a physical disability such as diabetes, than a mental illness such as depression.
In addition, many health screening questionnaires are badly designed and suggest the employer has an inadequate process for assessing a candidate’s health. Some questionnaires even suggest the employer has a blanket approach to reject candidates with certain conditions, which exposes those employers to significant disability discrimination claims.
There is also a sense that an employer will not be sympathetic to a condition such as stress or depression, which is sometimes interpreted as meaning that a person is ‘not up to the job’ or, even worse, they are malingering. Indeed, this attitude is quite widespread in the legal profession.
Recruitment decisions based on past medical history run the risk of uncapped claims for disability discrimination in an employment tribunal. The council’s comment that it would not have employed Laird would likely be considered strong evidence for a discrimination claim.
The case is a victory for those campaigning to end mental health stigma, but emphasises that some employers’ attitudes still have some way to develop.
Readers' comments (11)
ConfusedPartner | 10-Aug-2009 11:31 am
Sorry, I don't understand. If someone is applying for a high pressure job, but has a history of being unable to cope with pressure, why is this not relevant?
Employers will always (and rightly) discriminate against people who can't cope with pressure (just as they discriminate against those who don't have sufficient academic aptitude). Is it really right that, by slapping a medical label on the employee's condition, the ordinary exercise of an employer's judgment becomes "disability discrimination"?
I see employment law continues to inhabit a parallel universe...
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Anonymous | 10-Aug-2009 3:00 pm
ConfusedPartner does indeed miss the point. Depression and anxiety can manifest itself in a number of ways and does not automatically mean that someone is not able to cope with pressure. Depression doesn't make you a gibbering wreck. You would be surprised at how many seemingly confident and incredibly competent people you know who have suffered or continue to suffer with depression.
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Anonymous | 12-Aug-2009 1:04 pm
I presume ConfusedPartner is a qualified medical professional and so able to diagnose mental health conditions - something which can take months or years in even the most skilled hands.
No? I can imagine CP's reaction when non-lawyers presume the obviousness of answers to legal questions and the rightness of their own unqualified opinions.
I work for an organisation providing services to corporate law firms. Having had several episodes of depression, I was finally diagnosed with bipolar disorder a year into this job. My employers could not have been more understanding or supportive, but I am ruling out any job moves into a firm as such for fear of encountering the ConfusedPartners of this world.
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Imelda | 26-Aug-2009 1:19 pm
Depression can be triggered for many reasons and having suffered a bout does not indicate you are unable to or have a history of being unable cope with pressure at work. Depression such as post natal for instance or as a result of issues from the past is very common.
Given the response of Confused, I can see why many would not disclose once they have recovered.
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Anonymous | 27-Aug-2009 6:30 pm
The comment from Confused Partner is misguided. Depression and anxiety disorders are extremely prevalent. Rates are particularly high in the legal profession. Many individuals who have recovered from, or continue to suffer, mental health problems have rewarding and fulfilling careers in the profession. Indeed, many individuals find their mental health issues transformative, and that their lives, abilities and understanding of others are enhanced as a result of their experiences.
It is overly simplistic, to put it mildly, that individuals with mental health disorders cannot perform in high pressure jobs - the evidence suggests the contrary.
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D Hughes | 11-Sep-2009 10:47 pm
It may be worth observing that most people have a risk of stress and depression, which may amount to an disability, caused by their working conditions. It is not that they are defective but that they are human. Before blaming the victim an employer is well advised to investigate how their way of operating might be a sufficient cause of ill health and how they might change things to reduce the risks. Frequently, it is not because the job is inherently stressful (many are) but because of the social behaviour and attitudes of the managers or employees that illness is provoked. Some organisations and some managers take perverse pride in their stressful practices and need to be challenged. If the DDA achieves this it will be a good thing.
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Anonymous | 17-Sep-2009 12:28 pm
The questions were answered honestly, the council had no right to sue this individual simply because she had a previous bout of depression/anxiety. As someone who has suffered periodically from depression/anxiety/stress but who continues to hold a very stressful responsible job which I am very good at I can well imagine the attitude of this council. Justice prevailed in this case.
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Anonymous | 23-Sep-2009 4:22 pm
ConfusedPartner is right. Anyone with a history of mental illness should not be allowed to work in law.
That would get rid of about 1/3 of the magic circle partners.
And, lets extend that to people in public life - like politicians - Churchill suffered from depression very badly. We should have stopped him galvanising the nation and saving us from the Nazi's.
Oh and Abraham Lincoln - he suffered from depression. Should never have been allowed to be a politician
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Penny Ling | 28-Sep-2009 5:15 pm
I'm a practicing clinical psychotherapist and I see a lot of employees within the law sector. Many of them find themselves suffering with anxiety related problems or depression because their bosses are overworked, inefficient or stressed out themselves. Quite often I will see a top executive who suddenly finds themselves with burnout with no premorbid symptoms. Employers are now responsible for stress management within the work place, it is in everyone's interest to put a stress management policy in place and to keep a regular check on it. I sometimes work alongside HR departments helping their employees who are not being effective at work because they do not know how to deal with stress, I hope the number in the law sector will decline with time.
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Anonymous | 30-Sep-2009 3:46 pm
Buzz Aldrin, Ludwig van Beethoven, Robert Boorstin (Clinton's assistant), Winston Churchill, Francis Ford Coppola, Patricia Cornwell, Stephen Fry .... and the list goes on.
I think landing on the moon and running a country could be counted as high pressure... don't you?
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Anonymous | 21-Apr-2010 9:03 pm
Confused Partner, quite simply, your attitutude is disgraceful. Why not re-think your twisted take of the world and other people before you share your views on here again.
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