Many employees suffer with stress, anxiety and depression – the cause of which can be the result of work place pressures. Often the difficulty for employers in such cases is assessing whether the illness or condition is a disability under the requirements of the Equality Act 2010.
The recent case of Herry v Dudley Metropolitan Council reinforces the need for medical evidence when trying to establish a disability and the position that stress alone is unlikely to constitute a disability.
Mr Herry was employed as a teacher of design and technology and a part-time youth worker for Dudley Metropolitan Council. From May 2010, Mr Herry was signed off sick on several different occasions and was continuously away on sick leave from June 2011.
Mr Herry also suffered with Dyslexia. The Council accepted that Mr Herry was dyslexic but did not concede that his condition amounted to a disability. Whilst teaching at the school, Mr Herry did not mention Dyslexia to his colleagues or ask for reasonable adjustments to be made. In 2012, Mr Herry brought proceedings against the Council regarding more than 90 allegations covering a four year period. Mr Herry brought further proceedings against the Council in 2014 alleging disability and race discrimination. He claimed that his disabilities were dyslexia, stress and depression.
In order to be protected by the disability discrimination provisions of the Equality Act 2010 (EqA 2010), an employee must have a disability within the meaning of section 6 of the EqA 2010, at the relevant time the discrimination is alleged to have taken place. To determine whether an employee suffers from a disability, the following questions need to be considered:
Both the Employment Tribunal and Employment Appeal Tribunal found that Mr Herry was not disabled. Neither his dyslexia nor stress met the definition of disability under the EqA 2010.
He had not shown that his dyslexia had a substantial adverse effect on his ability to carry out day-to-day activities. In addition, he had provided little evidence that his stress had any effect on his ability to carry out normal activities. The Tribunal concluded that Mr Herry’s stress was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.
From an analysis of his sick certificates, the Employment Tribunal found that Mr Herry’s sickness absences fell into two main categories: from May 2010 to April 2013 the sick certificates usually referred to a physical injury but from October 2013 onwards, the certificates did not refer to any physical injury. From that point, they only referred to “stress at work”, “work related stress”, “stress”, or “stress and anxiety”.
Importantly, the Employment Tribunal considered a GP letter and an occupational health report which only referred to the stress of the Employment Tribunal proceedings. The occupational health report noted that Mr Herry took no medication to manage his stress and was physically and mentally fit and able to work. The Employment Tribunal noted that “Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments: they may simply reflect a person’s character or personality”.
This case outlines that the Employment Tribunal will focus on whether the employee’s condition has had a substantial long-term effect on their ability to carry out day-to-day activities, and the onus will be on the employee to provide evidence to support this. Mr Herry’s case did not succeed because of the lack of medical evidence to support his assertions. He could not establish a mental impairment or a substantial long-term adverse effect. The EAT emphasised that there is a difference between stress caused by challenging life events, including difficulties at work, and depression and anxiety. While the latter is likely to be an impairment, the former without more will not.
We regularly advise both employers and employees as to their rights and obligations under disability discrimination law in the employment context. If you have any questions regarding this article or discrimination in employment, please do not hesitate to contact me.