The short answer: a mental health condition can count as a disability under the Equality Act 2010 if it has a substantial and long-term effect on someone’s ability to do normal day to day activities. When it does, employers must make reasonable adjustments and must not treat the person unfavourably because of something arising from their condition. It does not depend on a formal diagnosis or on the person using the word “disabled”. For managers, the safest approach is simple: if someone is struggling, focus on what would help them do their job, and don’t wait to work out whether the law applies.
Most managers I train are not worried about being unkind. They are worried about getting it wrong. They want to support the person, but they also have a team to run, targets to hit and procedures to follow. This article explains the parts of the law that matter day to day, in plain English.
This article is part of our practical guide to workplace mental health training for UK employers.
When does a mental health condition count as a disability?
The Equality Act 2010 applies in England, Scotland and Wales. It says someone is disabled if they have a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities. Each part of that matters:
| Part of the test | What it means in practice |
|---|---|
| Mental impairment | Covers conditions such as depression, anxiety, PTSD, bipolar disorder and many others. A formal diagnosis helps but is not always required. |
| Substantial | More than minor or trivial. For example, tasks taking much longer than they normally would. |
| Long-term | Has lasted, or is likely to last, 12 months or more. |
| Recurring conditions | A condition that comes and goes can still count if it is likely to come back. |
| Normal daily activities | Everyday things like concentrating, sleeping, travelling, getting ready or talking to people. |
Two points often surprise managers:
- Treatment is usually ignored. If someone’s condition is well managed with medication or therapy, the question is generally what the effect would be without that treatment.
- They don’t have to call themselves disabled. Many people with qualifying conditions would never use that word.
Whether a particular person meets the definition is ultimately a legal question, and in a dispute it is decided by a tribunal. That is why the Acas guidance on mental health and reasonable adjustments encourages employers to make adjustments even where it is not clear that someone strictly meets the definition.
What does the law expect managers to do?
1. Make reasonable adjustments. Where someone’s disability puts them at a substantial disadvantage at work, the employer must take reasonable steps to reduce it. What counts as reasonable depends on things like cost, practicality and the size of the organisation. Many adjustments for mental health cost little or nothing: changed hours, a quieter workspace, time off for appointments, a phased return, clearer written instructions, or more regular check ins.
2. Don’t wait to be told officially. The duty applies when the employer knows, or could reasonably be expected to know, about the disability. If someone has had repeated stress related absences, or has told their manager they are struggling, “nobody told HR” is unlikely to be a defence. What a manager knows, the organisation is usually taken to know.
3. Don’t penalise the effects of the condition. It can be unlawful to treat someone unfavourably because of something that arises from their disability, such as absence, slower work or difficulty concentrating, unless the employer can show it was a proportionate way of achieving a legitimate aim. This is where many claims start: a capability or absence process that applies the same triggers to everyone, without thinking about the reason behind the absence.
4. Ask the person. The best source of ideas is usually the person themselves. Ask what would help, agree it, write it down and review it. Occupational health advice is useful where the right adjustments are not obvious.
The stakes are real. Compensation for disability discrimination at an employment tribunal is not capped. But in my experience, the organisations that end up in difficulty are rarely the ones acting in bad faith. They are the ones where a manager did not know what to do, so did nothing, or followed a process without stopping to think about the person in front of them.
How do you handle absence and performance fairly?
Supporting someone does not mean you can never talk about performance or attendance. It means doing it in a way that takes their condition into account.
- Separate the person from the process. Have a supportive conversation first, before any formal step. Ask what is going on and what would help.
- Look at the reason, not just the numbers. Before an absence trigger leads to a warning, ask whether the absences are linked to a mental health condition and whether adjustments could help.
- Consider adjusting the triggers. Discounting some disability related absence, or extending the review period, can be a reasonable adjustment in itself.
- Set clear, fair expectations. Agree what good looks like, with any adjustments in place, and review it together regularly.
- Write things down. Record the conversations, what was agreed and what was tried. This protects both the person and the organisation.
- Get advice before a big decision. If you are considering dismissal or a final warning for someone with a mental health condition, speak to HR or a legal adviser first.
If someone is coming back from time off, our article on Returning to Work After Mental Health Absence covers the practical steps. For the wider legal picture, including your health and safety duties, read Mental Health at Work: What the Law Actually Requires of You.
This balance between supporting the person and managing the role is exactly what our Manager Mental Health Awareness Training is built around.
Frequently asked questions
Is anxiety a disability under the Equality Act?
It can be. Anxiety counts if it has a substantial and long-term effect on someone’s normal daily activities. It depends on the individual, not the label.
Does someone need a diagnosis to be protected?
Not necessarily. The test is about the effect of the condition, not a specific diagnosis. Acas advises employers to consider adjustments even where it is not clear whether someone meets the definition.
Can I ask an employee if they have a mental health condition?
You can ask how they are and whether anything would help. Keep the focus on support and adjustments, and treat anything they share as confidential health information.
What is a reasonable adjustment for depression or anxiety?
Common examples include flexible or changed hours, a phased return, time off for appointments, a quieter place to work, adjusted targets for a period, and more regular check ins. The right ones depend on the person.
The bottom line
You do not need to be an employment lawyer to get this right. If someone is struggling, have the conversation, ask what would help, make sensible changes, write it down and keep reviewing it. That approach is good for the person, good for the team, and it is also what the law expects.
If your managers would benefit from support with these situations, book a free call and we will talk through what would help.
This is general information, not legal advice. For decisions about a specific case, speak to HR or an employment law adviser.