How many perms have you placed who have then been declared unfit for the role on mental health grounds? There may be more than you think if the phone call we received recently has anything to go by.
Whether you believe the latest figures on those suffering some form of mental health problem is due to meddling QUANGOs justifying their Whitehall grant or genuine, two questions are inescapable; do you have the right to know about your candidate’s mental health issues and are you responsible for telling your clients if indeed you do know about it?
Medical records are confidential but according to our source, who wishes to remain unnamed at this stage for obvious reasons, that won’t stop an employer digging into a recruit’s history.

Firsthand unfairness
“I had already been in the role for three weeks before they started digging around for my medical history,” said our rather annoyed caller. He added: “I was settling into my job, which I had got through a recruiter in my hometown when I get a call from a company dealing with my new firm’s HR and employee issues.
“I had already put in the official forms when offered the job - rather than my CV, although I regret this now - that I had suffered from a form of depression when I was at college 10 years ago. I received medication, but have been in full-time employment ever since.”
Our subject was then asked, in a follow-up call, if they could access my medical records because of the depression – they said ‘no’, after being told it was within their rights.
“The woman on the end of the phone was just not equipped to deal with the situation, she told me the company’s doctor would be in touch and put the phone down.
“Then a doctor did phone me and said they needed to see my records as they now had reason to believe I may not be fit for the role.”
“I was livid,” he continued, “not only is it a really sensitive subject to deal with personally but I genuinely had no idea my medical history would or could, or even should, affect my working life.”
“I was thinking that if I was still suffering from depression, then surely starting a job I really wanted, and was really proud of myself for getting especially in these times, and then having it taken away from me would have a significant impact on my state of mind.
“Why didn’t the company hiring me tell the recruiter it was going to be an issue? The recruiter was totally sympathetic but I could sense the consultant was worrying their commission was disappearing before their eyes.”

The law
The law is simple. The 1995 Disability Discrimination Act was designed not only for the obviously physically disabled but also protects people suffering with a mental illness from discrimination in employment.
The Act protects individuals who are suffering from a long term (12 months) clinically well recognised mental illness which has a substantial effect on their ability to carry out normal day to day activities.
The Act also covers individuals who have suffered from a mental illness in the past but who have now made a full recovery.
The DDA applies to employers in the United Kingdom regardless of the number of employees. It also covers contract workers, office holders and business partners.
A disabled person can be discriminated against in the recruitment process, during employment, if they are selected for redundancy due to their disability or even if their contract is terminated.
The Code of Practice relating to Employment (DfEE, 1996) says that less favourable treatment will be justified if the disabled person cannot do the job concerned, and no adjustment which would enable the person to do the job (or another vacant job) is practicable.
Therefore, if you can do the job, you should keep the job.

Timely intervention
So what rights does our subject have (let’s call him Max) and what do those involved in the industry from both the legal and business standards perspectives think about it?
Alex Bonner, head of London employment for law firm Blake Lapthorn, believes the work should really be done by the recruiter but she accepts the catch 22 issue running through it.
She says: “It’s difficult to know how common it is. We generally look at it from a DDA point of view, in that you disclose and everyone has to consider whether there are reasonable adjustments you can make. You can’t just go around sacking people because they have declared a mental health issue.
“It seems to me sensible to ask candidates about their history at the recruitment stage – but then one has to be careful that they are not discriminating against someone who has disclosed it. In a way it’s very circular because you have DDA liability at all stages from interview through to recruitment, employment and termination.
“The difficulty then is proving that someone has not employed you because you have declared a mental health issue.”
But what about an historic illness, such as in Max’s case? Where is the justification in making him feel prejudiced against?
Alex continues: “In this case the illness really seems irrelevant because it was so long ago. They should really check whether it has reoccurred. It’s almost like a spent conviction otherwise and seems a really flippant way of dealing with the situation.”

Ongoing issue
The Recruitment and Employment Confederation have grasped the nettle on this issue within the last couple of years and have been at the forefront of a drive, together with Government ministers, to help clarify legislation for recruiters and employers.
“It was about two years ago the Government realised they needed to present a high-profile awareness campaign,” says REC director of external relations Tom Hadley.
He adds: “This is quite a difficult one, as the candidates are not always willing to divulge certain information and particularly about a mental health issue. It is the consultant’s responsibility to get as much information about the candidate as possible. At the same time in reality a lot of employers have got to keep up to speed with it because a lot of them will run a mile from it; so what do you then do as a recruiter?
“The REC has undertaken quite a lot of raising awareness which included MIND coming and speaking to our members and I think one of the first steps is getting recruiters up to speed on mental illness.
“Anything that is relevant should be passed onto the employer, but again are we confident that they are not going to run a mile from the candidate. As a recruiter you should try and get all the information and put the candidate at ease that it won’t count against them and also make sure that it doesn’t happen. That, however, is in an ideal world.
“It is fair to say that there has been some progress in terms of employers realising it needn’t be a block to employment but that is not the case across the board as there are still employers out there that won’t employ people with a history of mental illness and that is why the Government has been keen to speak to us about it.”
Tom says the REC could easily understand at the moment why candidates would be prepared to be dishonest about the issue.
“I would say that in terms of this candidate’s situation that it seems particularly harsh,” adds Tom.
“I think the message we would put out to recruiters is to try and get the information when they can and help spread the awareness and if they are a bit old school then let them know they could be sued.
“As we look ahead over the next few years the recruiters who are brave and want to take on the subject will be seen as good and honest recruiters.”

Honesty. Honestly?
It would appear that due to a lack of understanding about the varying levels of mental health problems, that employers are still seeing it as a barrier for a perfect candidate.
This in turn is creating a vicious circle of candidates being economical with the truth – and quite honestly who can blame them.
And yet 25 per cent of the workforce could be suffering from a form of mental illness and that goes generally unnoticed in the main at work.
There are of course roles which demand the candidate is, for want of a better phrase, perfectly balanced, but Max is in admin!
The candidate knows how their condition can raise its head and in Max’s own words: “I wouldn’t even be thinking of getting a job if my previous problems meant I wouldn’t be able to carry it out.”