Am I being discriminated against because of my depression?

This is sadly an all too common scenario. If your depressive illness amounts to a disability you may be protected by the Equality Act 2010. Depression can be a disability if it is long-term, i.e. has lasted or is likely to last more than a year and has a substantial impact on your daily activities.

If you take medication or have other therapy, you need to consider how you would function without this assistance to determine if you are disabled. If you are, this imposes additional obligations on your employer in terms of time off for illness.

If you can show there is a link between unfavourable treatment and your disability, this might be discrimination arising in consequence of disability in breach of section 15 of the Equality Act. This means that if there is any connection between the thing you are unhappy about, in your case, not getting a bonus, and your disability, this could be discrimination. Your employer has to be able to show that even if it is discrimination, they have a legitimate reason for not giving you a bonus. That’s the hard part for them.

There was a case on non-payment of a bonus for a disability reason in 2015. It is called Land Registry v Houghton. The court said the disabled worker should have been given a bonus because there was a connection, however remote, between the disadvantage and the disability.

Bonuses are always tricky because most employers operate discretionary schemes to give them a lot of flexibility on awards. If you can show from previous years that you would have had a bonus and the only reason you don’t get one this year is disability you may have a claim. Beware of time limits in Employment Tribunals for bringing claims. You have three months minus one day from the date the discriminatory act occurred.

Compare the position to a maternity leaver in your company. If they get a bonus or a pro-rated one for the time they worked during the bonus year this might signal that you are being discriminated against for a disability reason. Adjusting targets (reasonable adjustment) should also be a consideration, maybe altering the targets to reflect time off.

Unfortunately, non-payment of a bonus might be a sign that the company no longer values you. Whatever you do, don’t resign and give them an easy way out. Take legal advice. Immediately.

Karen Jackson, director at Didlaw, is a solicitor who is an expert in disability discrimination law and other health-related issues in employment

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