Many employees suffer with stress – the cause of which can be the result of work place pressures. Often the difficulty for employers in such cases is assessing whether the employee is suffering from a a disability under the requirements of the Equality Act 2010.

Key decisions made by the Employment Appeals Tribunal have reinforced the need for medical evidence and the distinction between the symptoms caused by clinical depression or similar conditions, and those derived from adverse life events or problems.

In this blog we look at the case of Herry v Dudley Metropolitan Council which reinforced the need for medical evidence when trying to establish a disability and the position that stress alone is unlikely to constitute a disability.

The Facts

Mr Herry was employed as a teacher of design and technology and a part-time youth worker for Dudley Metropolitan Council. Mr Herry was signed off sick on several different occasions and was then continuously away on sick leave for a long period.

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.  Mr Herry brought proceedings against the Council regarding more than 90 allegations covering a four year period including claims for disability discrimination. He claimed that his disabilities were dyslexia, stress and depression.

Disability Discrimination – The Law

In order to be protected by the disability discrimination provisions of the Equality Act 2010 (the Act), an employee must have a disability within the meaning of section 6 of the Act, 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:

The Decision

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 Act.

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 later sickness absences certificates referred only 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 Appeal Tribunal commented that this was a class of case where the individual would not give way or compromise over an issue at work and refused to return to work, but in other effects suffered little apparent adverse effect on their day to day life otherwise.

They 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”.

Comments

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. This case 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 a member of the Employment team.