Avoiding discrimination claims: a guide for employers on supporting mental health

Mental health in the workplace is no longer a topic that can be sidelined.

With rising awareness, increasing legislative scrutiny and evolving expectations around employee wellbeing, employers must ensure their practices support mental health, not just ethically, but legally too.

At Elcons, we’re seeing a growing number of enquiries from employers who are unsure how to navigate the fine line between managing performance and avoiding disability discrimination, especially when mental health is a factor.

Here’s what every employer needs to know to protect both your people and your business.

Mental Health & the Equality Act 2010

Under the Equality Act 2010, mental health conditions can be classed as a disability if they have a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

This includes conditions such as depression, anxiety, PTSD, bipolar disorder, and many others.

Where a condition qualifies as a disability, the employee is protected from:

Direct discrimination
Indirect discrimination
Discrimination arising from disability
Harassment
Victimisation
Failure to make reasonable adjustments

These protections apply from day one of employment and don’t require the employee to disclose their diagnosis formally to be valid.

How employers can avoid discrimination claims

Promote a culture of openness –

Create an environment where employees feel comfortable discussing mental health.

Make it clear through policies, training and leadership behaviour that mental wellbeing is taken seriously and won’t be stigmatised.

Understand when a mental health condition may be a disability –

Even if an employee hasn’t disclosed a formal diagnosis, signs of long-term or significant struggles (e.g., prolonged absence, withdrawal, performance dips) may be enough to trigger your duty to investigate and support.

Don’t jump to formal action –

If an employee’s performance or attendance is affected by mental health, seek to understand before moving into capability or disciplinary procedures. A failure to explore reasonable adjustments first could lead to a successful claim.

Make reasonable adjustments –

These could include:

Adjusting working hours
Offering remote or hybrid work
Modifying tasks or deadlines
Providing access to external support (EAPs or OH referrals)

What’s considered “reasonable” depends on the size and resources of the business but doing nothing is rarely defensible.

Train line managers –

Most discrimination issues arise not from policy failure, but from inconsistent day-to-day management.

Ensure all managers are trained to recognise potential signs of mental health issues and know when to escalate to HR. Elcons have a range of training courses to cater to this.

Common employer pitfalls

Relying too heavily on GP fit notes without engaging with the employee directly
Assuming “no formal diagnosis” means no disability
Treating mental health-related absence as misconduct
Failing to document support discussions or adjustments offered
Allowing untrained managers to handle sensitive cases alone

Getting it right protects everyone

Supporting mental health at work isn’t just about avoiding legal claims: it’s about retaining talent, reducing absence, and building a resilient culture.

But when the legal risks are high, especially around disability discrimination, getting expert advice is key.

At Elcons, we help employers navigate these issues confidently from writing compliant policies and manager training, to handling complex cases involving mental health, performance or absence.

📞 Contact us today for further advice: 0800 014 9595