As we have covered previously, an employee needs to fall within the definition of disability under the Equality Act 2010, in order to have protection against disability discrimination.
In the recent case of Herry v Dudley Metropolitan Council, the Employment Appeal Tribunal considered whether work-related stress may amount to a disability.
Mr Herry was employed by the Council as a teacher, and brought various proceedings against them based on 90 allegations covering a 4 year period. He brought a claim for disability discrimination on the basis that his dyslexia, and stress and depression, amounted to disabilities. The Council did not accept that Mr Herry had a disability.
The Employment Tribunal found that Mr Herry was not a disabled person within the meaning of the Equality Act.
The Employment Tribunal referred to guidance in the previous case of J v DLA Piper, which said that there was a distinction between a mental illness referred to as “clinical depression”, which is an impairment within the meaning of the Equality Act, and a reaction to adverse circumstances or “adverse life events” which are not normally long lived.
The Employment Tribunal found that Mr Herry had not shown that his dyslexia or stress or depression had a substantial adverse effect on his ability to carry out normal day to day activities.
Mr Herry appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the Employment Tribunal’s finding that Mr Herry was not disabled and commented that “experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities”. The EAT also said that “an Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise…are not of themselves mental impairments”.
The EAT noted that the question of whether there is a mental impairment is for the Employment Tribunal to assess, but it must consider any medical evidence in support of a diagnosis of mental impairment with great care.
In this case, none of Mr Herry’s sick notes referred to depression. There was a letter from his GP and an occupational health report, but they only referred to the stress of the Employment Tribunal proceedings. The occupational health report also noted that Mr Herry was not taking any medication for stress and that he was mentally and physically fit to work.
As we noted in our previous article, the decision as to whether the definition of disability is met is strictly speaking a legal one rather than a medical one, but medical advice is key. If you are dealing with a difficult employee who is alleging work-related stress, it is always best to take advice. We have experience of advising on all sorts of tricky situations, so do get in touch.
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]).