Is Anxiety a Protected Characteristic?

A question employers often ask is whether anxiety is a protected characteristic under the Equality Act 2010.

Strictly speaking, it is not.

However, an employee suffering from anxiety may still have protection under the Equality Act if their condition meets the legal definition of a disability. For employers, that distinction matters.

Anxiety Itself is Not a Protected Characteristic

The Equality Act 2010 protects individuals against discrimination because of certain protected characteristics. These include:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

Anxiety does not appear on that list as a separate protected characteristic.

The relevant protected characteristic is disability.

When Can Anxiety Amount to a Disability?

Under section 6 of the Equality Act 2010, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Anxiety can amount to a mental impairment for these purposes.

The question is therefore not simply whether an employee has anxiety. Employers need to consider the effect the condition has on that particular employee.

For example, does it substantially affect their ability to:

• concentrate
• communicate or interact with other people
• travel
• sleep
• carry out everyday tasks
• attend or function at work?

"Substantial" means more than minor or trivial.

"Long-term" generally means that the effect has lasted, or is likely to last, for at least 12 months. Conditions which recur or fluctuate can also satisfy the test.

Importantly, an employee does not necessarily need a formal medical diagnosis before they can meet the legal definition of disability.

What Should an Employer Do if an Employee Tells You They are Suffering from Anxiety?

If an employee tells you that they are suffering from anxiety, particularly where it appears serious or has been affecting them for some time, do not dismiss the issue simply because "anxiety is not a protected characteristic".

You should consider whether the employee may be disabled for the purposes of the Equality Act.

Depending on the circumstances, this may mean:

• discussing the condition with the employee;
• considering reasonable adjustments;
• obtaining appropriate medical or occupational health advice;
• reviewing whether absence or performance issues are connected to the condition;
• following a fair process before taking disciplinary, capability or dismissal action.

Employers should also be careful about making assumptions. You do not need to become a medical expert, but you should make reasonable enquiries where there are indications that an employee may have a disability. It is the employer who owes a duty of care to the employee.

What Could Amount to a Reasonable Adjustment?

There is no standard adjustment for anxiety. What is reasonable will depend on the employee, their role and the needs of the business.

Possible adjustments might include changes to working hours, additional breaks, temporary changes to duties/targets, adjustments to communication or meetings, additional support or some home working where appropriate.

A small business is not necessarily expected to make the same adjustments as a large organisation with considerably greater resources. The legal test is whether the particular adjustment is reasonable in the circumstances.

A Practical Example of Handling an Employee With Anxiety

An employee who occasionally feels anxious or nervous before giving a presentation is unlikely, on that fact alone, to meet the definition of disability.

The position could be very different where an employee has an anxiety disorder which, over a prolonged period, substantially affects their concentration, sleep, ability to travel, interaction with colleagues or ability to attend work.

The label attached to the condition is not the deciding factor. It’s the effect on the individual is what matters.

The Point for Employers Regarding Anxiety

Anxiety is not, by itself, a protected characteristic under the Equality Act 2010.

However, anxiety can amount to a disability and “disability” is a protected characteristic.

If an employee's anxiety is having a substantial and long-term effect on their normal day-to-day activities, employers should consider their Equality Act duties before making decisions about absence, performance, disciplinary action or dismissal.

Getting this wrong can result in a discrimination claim, including claims relating to reasonable adjustments and discrimination arising from disability. Compensation for these types of claims are uncapped meaning there is no statutory limit on the financial awards an employment tribunal can grant for claims involving race, sex, disability, or other protected characteristics.