Equality Act 2010

During the parliamentary stages of the Equality Bill, mental health organisation Mind lobbied with other mental health and disability charities to get a ban on pre-employment questionnaires included in the Act. After securing cross-party support for the principle of a ban on questions that ask about a candidate's medical history and putting considerable pressure on Ministers, the last Government introduced a new clause to the Equality Bill making these questions unlawful.

The Equality Act came into force on October 1st 2010. The act bans companies from finding out whether potential employees are healthy enough to work for them prior to an offer of employment. Candidates will no longer be expected to declare medical issues during the recruitment stage unless it is specifically related to their job role.

Equality campaigners have long argued that employers discriminate against prospective employees with mental health issues, disabilities or a long history of illness, putting people off applying for a job.

However, 65pc of employers still ask a candidate about their health prior to a job offer, and 48pc ask potential employees to fill out a questionnaire detailing medical conditions and sickness records, according to a poll of 100 companies by law firm Pannone.

Jim Lister, head of employment law at Pannone, said: "The penalties for employers include investigation by the Equality and Human Rights Commission and the reversal of the burden of proof, meaning that the employer will be assumed to have discriminated, unless it can show there was another reason for non-selection.

Organisations that learn of a person's health issue after the job offer but fail to make reasonable adjustments and are forced to withdraw the offer face litigation, lawyers have said.

The reversal of the burden of proof is highly significant. Effectively this means that an employee who feels discriminated against on the grounds of mental ill-health, for example, is not required to prove that this is the case. It becomes the employer's responsibility to prove that this is not the case. If proved otherwise, the employer will be required by law to comply with equalities legislation and where necessary, to make reasonable adjustments on behalf of the employee.

Severe and enduring

'Severe and enduring mental health problems' is the category description for people in secondary care in the UK. The description applies to anyone who's been sectioned or who is under the care of a Community Mental Health Team (CMHT). People with severe and enduring mental health problems live with their conditions, cope and often recover from their illness. Not necessarily full recovery but a return to mainstream life while coping with the longterm condition.

The care provision for secondary or 'severe and enduring' clients is different from the primary care pathway. Primary care clients are under a GP and have access to psychological therapies such as cognitive behaviour therapy (CBT) and counselling. Secondary care clients can also receive therapy, but delivered through the Community Mental Health Team and not through GP referral.

Severe and enduring mental health conditions can mean extra limitations for certain clients. Limitations above and beyond the condition itself, barriers on the individual's return to mainstream. It shouldn't be the case but it is sometimes. At a crucial stage, the recovery path is held back by what amounts to a reinforcement of something that Professor Pat Deegan has described as 'a career in mental health'.

Current practice around mental health care delivery emphasises as quick a return to mainstream life as is possible and viable. But the length of time that an individual may have spent in hospitals and under the benefits that are geared to support him or her, can prevent, delay or permanently impair the return to mainstream. A 'severe and enduring' diagnosis may mean access to appropriate support, but it may also mean a long term stay in the mental health system, supported but cut off from aspiration and opportunity. This can still be the case after a patient is discharged and living in the community.

Clinical and community teams expend a lot of effort in signposting clients back to mainstream and onto a recovery pathway. The practical ability to reach for these opportunities may be impaired by a loss of self-worth and empowerment by the time he or she is directed to this part of the care plan. Clients with severe and enduring conditions may comply in being signposted to mainstream providers because they feel it is required by their teams or because they fear not doing so might lead to losing benefits, not because they have made a genuine individual choice.