We deal with a number of queries from clients regarding staff with mental health problems such as depression and anxiety. We advise employers that employees with these conditions may meet the definition of disability and therefore the employees may be protected from discrimination under the Equality Act 2010. The recent case of Saad v University Hospital Southampton (2014) addressed the question of whether a surgeon who suffered from a depressive and general anxiety disorder was disabled for the purposes of the Equality Act.
Mr Saad was employed by the Hospital on a series of fixed term contracts, with the last expiring in September 2012. The hospital did not renew his contract and Mr Saad claimed disability discrimination arguing that his depression and anxiety amounted to a disability for the purposes of the Equality Act 2010.
The definition of disability in section 6(1) of the Equality Act is ‘a physical or mental impairment which has a substantial long-term adverse impact on the individual’s ability to carry out normal day to day activities.’
At the Employment Tribunal it was held that whilst Mr Saad did suffer from depression and anxiety, the condition did not have a substantial, adverse or long-term effect on his ability to carry out day-to-day activities and therefore did not amount to a disability for the purposes of the Act.
Mr Saad appealed to the Employment Appeal Tribunal arguing that his condition both affected his ability to communicate with colleagues, attend work and to concentrate properly. He also argued that whilst his condition came and went, it was still ‘long-term’ as the effects of his condition had lasted for a year or more.
The EAT dismissed Mr Saad’s appeal. It decided that the Tribunal had properly considered the effect of his condition on his working environment and were correct in their conclusion that it did not have a substantial adverse effect on his day-to-day activities. They did not state that Mr Saad’s condition was not a disability but found that the effects of his condition weren’t extensive enough to substantially affect his ability to concentrate in the long term.
This case provides a useful insight into how an Employment Tribunal considers whether someone is disabled for the purposes of the Equality Act. The decision does not mean that depression and anxiety are not disabilities – in fact it is often prudent for an employer to assume that they are. What it does demonstrate is that a Tribunal is looking for evidence that the full definition of a disability under the Act is satisfied. In this case, Mr Saad was unable to argue that his condition had a substantial (i.e. more than minor or trivial) and long-term effect (lasts for at least 12 months or likely to last for 12 months or more) on his ability to carry out day-to-day activities.
The decision as to whether the definition is met is a legal one rather than a medical one, but medical advice is key. We would advise employers to seek guidance from medical professionals (with the employee’s consent) either by requesting a report from an employee’s GP or Occupational Health. When considering dismissal of someone with a long-term health condition it is always best to take legal advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).