Disclosing mental health problems when applying for jobs

Disclosing a past mental health problem to your employer can work both ways, writes Craig Kenny, who finds that disability legislation fails to offer adequate protection

One in four of us will suffer a mental health problem in our lives, but how many of us will tell our boss about it?

When Christine Laird applied for the post of chief executive at Cheltenham Council, she chose not to disclose a history of depression.

She later went off sick for more than a year, and then found herself being sued – unsuccessfully – by her employer (see panel, below).

Evidence suggests that few people disclose health problems to prospective employers and, given the stigma attached, people with mental health disorders are probably even less forthcoming.

According to the Department for Work and Pensions, just 180 – or 0.7% – of the 27,000 people with a disability who claim government grants to help them stay in work have declared a mental disorder.

Research for the Department of Work and Pensions looked at 743 incapacity benefit claimants whose medical conditions affected their ability to work.

A quarter of them had mental health problems. It found that only 1% had discussed their condition with their previous employer before they started the job, while 30% had never mentioned it.

An online poll of 279 people with mental health problems by charity Mind found that disclosure led to 25% having a job offer withdrawn and 31% being sacked or forced out of a job.

A survey by charity Rethink found that 41% of mental health service users were deterred from applying for jobs because they feared discrimination.

“Too many people have had too much experience of being turned down for jobs, or they anticipate that’s what will happen,” says Mind chief executive Paul Farmer.

In theory, the Disability Discrimination Act 2005 (DDA) offers protection against disabled candidates being weeded out during the appointment procedure.

However, it is difficult to prove a candidate has been eliminated on this basis. Further, the legislation does not cover all health problems.

“There have been some test cases in recent years,” Farmer says. “But many people feel that the legislation doesn’t protect them sufficiently.”

Health questionnaires

Mind is now campaigning for health questionnaires to be given to prospective employees only after a decision has been made to appoint them.

This would allow occupational health support to be given, but ensure no discrimination occurs.

This is the law in the US, and Mind wants to see similar provision in the Equalities Bill now going through parliament.

Solicitor general Vera Baird promised earlier this month to bring forward an amendment at the next stage of the bill to address the issue.

A briefing for MPs issued by Rethink calls for the government to allow pre-employment questionnaires only if they relate to the ability of an applicant to perform job-related functions, as is the case in the US.

The charity claims this would be particularly helpful for people with mental health problems.

Such a change would offset the move by some employers to tighten and elaborate their pre-employment health questionnaires in the light of the Laird ruling.

The form completed by Laird when applying to Cheltenham asked only whether she normally enjoyed good health (she answered yes) and whether she had a mental or physical impairment (she said no).

Specific conditions

Cheltenham’s new form asks for more detail about specific conditions, and medical consultations and absences from work in the previous two years.

“It is clear that employers need to be more careful about the way they word their pre-application questionnaires,” says Cheltenham’s human resources director, Amanda Attfield.

But employers must strike a balance. “The danger of the Cheltenham judgement is it could be wrongly interpreted as needing to ask more rigorous questions at a much earlier stage than is necessary or legal under the DDA,” says Phil White, head of negotiation for Local Government Employers (LGE).

“I’m told some local authorities have fallen foul of that legislation by excluding applicants with previous episodes of depression.”

White says the LGE recommends that, as a minimum, employers ask about sickness absence in the previous two years and whether it is related to any disability.

Employers can then discount any disability-related sickness absence when comparing applicants and comply with the DDA.

But White argues that more detailed screening questions may be justified if, as in Laird’s case, the post carries management responsibility.

“An episode of depression in a cleaner is less likely to affect their work than it would for a chief executive,” he says.

Richard Webb, joint chair of the Mental Health, Drugs and Alcohol Policy Network at the Association of Directors of Adult Social Services, disagrees on this point. “Screening processes should be equal and consistent across the workforce,” he says.

“Some of our greatest leaders – Winston Churchill, for example – had a mental health problem. Are we saying that only people with good mental health status can work or undertake leadership roles?”

Farmer also argues there should be no bars: “There are legal barriers to people who have been sectioned under the Mental Health Act becoming an MP, a juror or company director. We think that’s not particularly logical. It’s difficult to think of a role that someone with a past mental health condition could not perform.”

Case study

Cheltenham Council v Christine Laird: When non-disclosure is acceptable in law

Cheltenham Council sued their former chief executive Christine Laird for £1m damages arguing she misrepresented her medical history on her application, writes Pam Loch

In this landmark case, the High Court found in favour of Laird, whose answers to a medical questionnaire were central to allegations of fraud. Mr Justice Hamblen ruled that, if a question was ambiguous and could reasonably have more than one meaning, either interpretation would be accurate.

Laird did not consider that her episodes of stress constituted a mental impairment and, because they were work-related isolated incidents, she considered herself to normally enjoy good health. The judge agreed.

By her own admission, Laird did not have a disability. As a result, this case has not changed the current law or increased the scope of the Disability Discrimination Act.

But it is relevant to the disability discrimination debate. Many employers may now tighten their processes by asking more specific questions in relation to health and disability.

The case also provides some key advice for anyone with a disability who applies for a job. If they encounter a general questionnaire and can reasonably interpret a question in a way that does not lead them to disclose their disability, then this case suggests that may be acceptable.

Pam Loch is founder of employment law firm, Loch Associates, and managing director of HRAdvise.Me.

Case study

Ruth Goldsmith, DrugScope: ‘I took the plunge and was offered the job’

Ruth Goldsmith was frank with her employers about her mental health problems and, thanks to their support and understanding, has been able to maintain a high-profile career.

When the 29-year-old communications manager applied for a job at the charity DrugScope, she was initially nervous about disclosing her history of bipolar disorder.

“I was asked at interview ‘what’s been your greatest challenge?’,” Goldsmith says. “I took the plunge and said it was overcoming my mental health problems to get a degree and then get on to a career path. After the interview I thought ‘what have I done, should I have said that?’. But half an hour later I was offered the job.”

Goldsmith had come off her medication and was managing well at work until a bereavement triggered a depressive episode last year. Eventually, she told her line manager, director of communications and information Harry Shapiro, who offered her reassurance and support.

“Someone like Ruth is conscientious and hardworking and was always apologising for not being well,” Shapiro says. “There was a time when she tried so hard to come in, and it wasn’t happening for her. I told her ‘look after yourself, take time, and don’t worry about the job’.”

When Goldsmith had to take a month off work, colleagues kept her spirits up and helped ease her gently back into her role.

“I was sometimes invited to participate by phone to keep me in the loop,” she recalls. “I got lots of supportive e-mails from colleagues.

“Looking back, I realise how much it helped that people weren’t tutting and shaking their heads. Instead, it was exactly what might be expected for a physical health problem, which is how it should be.”

Initially, she returned to work at times that suited her. A new member of staff had been recruited to her team to ensure the work did not pile up in her absence. Goldsmith says that, rather than making her illness worse, her employer’s actions boosted her confidence.

“I don’t have to panic about what might happen if I have another episode,” she says.

This article is published in the 23 July issue of Community Care magazine under the heading That would be telling