by
Ryan Clement
A family member of mine has been tirelessly championing the cause and fighting the case of seeking to de-stigmatise issues surrounding Mental Health – see, for example, ‘Stigma and Discrimination‘
Under s.6 of Equality Act 2010 a person is disabled if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In practice, however, a claimant does not need to prove that their disability falls into one category or the other, and, of course, some fall into both. A6 of the Equality Act 2010 Guidance says: “It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.”
Naturally and legally, victims of discrimination suffer hurt feelings. There is no doubt that stigma is attached to some physical impairments. But, if it is widely accepted that there is among some a stigma attached to those with mental health issues, where a claimant can show and has proven that their disability was one of mental impairment, should there be rebuttable presumption (compensation automatically increased), taking into account ‘stigma’ when considering the level of award for injury to feelings in order to compensate the victim adequately?
I can see how such an automatic ‘stigma’ increase could lead to a wider debate by some seeking to argue that one form of discrimination is worse (or less) than another i.e. sex v ‘race’; age v sexual orientation etc. and such increased compensation should apply in such cases also. We don’t want to go there! Also, some might argue that ‘Aggravated Damages’ already fulfil this role. However, as remedy is there to ‘compensate’ and not to ‘punish’ we might wish to consider whether it would be fair to put the burden on the claimant, suffering from mental health, to show that such stigma is present and an award should be increased accordingly rather than simply increase it from the outset and leave it open for a party to argue why such increased award would not compensate but penalise in the circumstances/based on the facts of the case.
Like I intimated above, I am alive to the question of should disability be treated differently from the other protected characteristics? However, we are referring to an ‘impairment,’ which, in some ways, is already, naturally, treated differently under the 2010 Act – for example, the duty to make reasonable adjustments – see s.20 and s.21.
Food for thought!
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Ryan Clement, LLM, BA, BSc, Barrister
https://www.youtube.com/@RyanClement1
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Ryan Clement 