The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: a legal analysis of the situation in the EU Member States

Abstract

For those individuals who experience mental health problems, there is frequently an impact upon their working lives. A period of poor health may lead to absence from the workplace and pose the challenge of managing a successful resumption of work at a later point in time. In general, being in work can be beneficial for maintaining good mental health. Yet adverse working conditions can be a contributing factor to experiencing mental health problems. Therefore, the workplace is a crucial site for mental health policy. An inclusive working environment makes a contribution to reducing the social and economic consequences of mental ill-health by enabling people to participate in employment and to remain in jobs after a health-related absence. The Employment Equality Directive was adopted in 2000 and it prohibits discrimination in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation. There is no definition of disability found within the Directive, but the Court of Justice (CJEU) has recognised that this includes disabilities arising from ‘psychological impairments’. Therefore, individuals who experience mental health problems may be regarded as disabled and may benefit from the duty on employers to provide reasonable accommodation to allow individuals to have ‘access to, participate in, or advance in employment’. It is widely understood that not every instance of physical ill-health constitutes a disability. In a similar fashion, a distinction can be drawn between mental ill-health and psychosocial disability. Where an individual experiences a short-term mental health problem of limited severity, then this, by itself, may not constitute a disability for the purposes of non-discrimination law. In contrast, a mental health problem that endures or recurs is likely to constitute a psychological impairment and lead to a disability. In this report, the term ‘psychosocial disability’ has been adopted to refer to those psychological impairments that, in interaction with other barriers, give rise to a disability. Common examples of conditions that may give rise to a psychosocial disability include: depression, anxiety, stress, addictions, phobias, eating disorders, schizophrenia, post-traumatic stress disorder, bipolar disorder and personality disorders. In some Member States, the term ‘mental disability’ is commonly used. While this may cover persons with psychosocial disabilities, typically it extends to include also those with intellectual disabilities (e.g. persons with Down’s Syndrome). As this report does not focus upon the relevance of the Directive to persons with intellectual disabilities, we have generally not used the term ‘mental disability’. The information provided in the report is based on questionnaires completed by national experts from the European network of legal experts in gender equality and non-discrimination, as well as desk research by the authors.