An employee has recently taken some time off work citing mental health issues. The employee has never raised such health concerns with us before. Do we have any duty in relation to the employee given that the employee has never disclosed his medical history of mental illness?

There is no duty on the employee to disclose their mental health issues. Some mental illnesses may fall within the definition of ‘disability’ under the Disability Discrimination Act 1995 (“1995 Act”). Under the 1995 Act, a person has a disability “if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities”. It is easy to see that in the realm of mental illness, many will fall short of satisfying this criteria and will not be protected by the duties imposed by anti-discrimination legislation.

However, if the employee’s mental illness falls within the scope of this definition, the employer will have a duty