Stress: Is it a Disability?

The statutory definition of disability (under the Disability Discrimination Act 1995 (as amended) in Northern Ireland and the Equality Act 2010 in GB) is: “a physical or mental impairment which has a substantial and long term adverse effect on the employee’s ability to carry out normal day to day activities”. In the case of Herry –v- Dudley Metropolitan Council the Employment Appeal Tribunal (EAT) considered whether long term stress (which in that case was attributed to work) was a disability for the purpose of that legislation.

Wednesday 26 April 2017

The statutory definition of disability (under the Disability Discrimination Act 1995 (as amended) in Northern Ireland and the Equality Act 2010 in GB) is: “a physical or mental impairment which has a substantial and long term adverse effect on the employee’s ability to carry out normal day to day activities”.

In the case of Herry –v- Dudley Metropolitan Council the Employment Appeal Tribunal (EAT) considered whether long term stress (which in that case was attributed to work) was a disability for the purpose of that legislation.

The Claimant had been engaged for some years in litigation against the Respondent and another party. That litigation involved more than 90 serious allegations covering a period of more than four years and involving a hearing which lasted 39 days.

From May 2010 he lodged many sickness certificates and from June 2011 was absent from work continuously on long term sick leave. From May 2010 until April 2013 the certificates mainly certified physical injuries. From October 2013 they referred variously to “stress at work”, “work related stress”, “stress” or “stress and anxiety”.

The case came before the EAT on appeal on a number of issues. One such issue, which this bulletin addresses, was whether the Claimant’s condition amounted to a disability as defined. The EAT noted that there was a dearth of information in the medical documents as to the nature of the alleged work related stress. A GP’s letter and an occupational health report referred to the stress of Tribunal proceedings. The occupational health report said that the Claimant took no medication for stress and was mentally and physically fit to perform his role, that from the medical point of view he could return to work as soon as possible but that there were still “outstanding management (non-medical) issues at the workplace which are causing stress”. A certificate dated 31 March 2015 said that “patient feels the behaviour of certain individuals [is] what is stopping him from returning to work at the school and causing his stress”.

The EAT referred to an earlier Judgment in the case of J –v- DLA Piper UK in relation to whether conditions described as depression will amount to impairments within the statutory definition. The Judgment in that case described two states of affairs which can produce broadly similar symptoms of low mood and anxiety: the first state being clinical depression, stating that that was unquestionably an impairment within the meaning of the Act and the second, simply a reaction to adverse circumstances (such as problems at work) or “adverse life events”, which would not be an impairment.

In the Herry case the EAT approved that test and added the following:-

although reactions to adverse circumstances are indeed not normally long lived, 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;
a doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. 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 (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality;
any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee's satisfaction; but in the end whether there is a mental impairment is one for the Employment Tribunal to assess;
there can be cases where a reaction to circumstances becomes entrenched without amounting to a mental impairment and a long period of absence from work is not conclusive of the existence of a mental impairment.

In this case the Employment Judge had found that the Claimant’s stress was “very largely a result of his unhappiness about what he perceived to have been unfair treatment of him” and that there was “little or no evidence that his stress had any effect on his ability to carry out normal activities”. The Employment Judge considered those two aspects together. The EAT concluded that he had not committed any error of law in doing so and that the Claimant had failed to establish that he was under a disability for the linked reasons that he did not establish a mental impairment and he did not establish the requisite substantial long term adverse effect.

This case provides a useful reminder and reinforcement of the test set out in J –v- DLA Piper UK and will be of relevance to employers, employees and advisers, particularly in situations involving protracted periods of sick leave which is certified as due to stress, including where that is due to the employee’s unhappiness about issues in the workplace: that stress will not amount to a disability as defined unless it meets the statutory definition of a mental impairment which has a substantial and long term adverse effect on the employee’s ability to carry out normal day to day activities: a long term stress condition, whether or not including a period of absence from work, will not, of itself, be sufficient to meet the statutory definition.

If you are an employer and you require any further information or advice on dealing with specific issues such as the above, please contact any member of Employment Department at Elliott Duffy Garrett on 028 9024 5034 or by email:

adrienne.brock@edglegal.com

julieanne.clarke@edglegal.com

chiara.hutton@edglegal.com

ian.mcfarland@edglegal.com

Every care has been taken in the preparation of this article; readers are advised however to seek legal advice in relation to specific issues.

Wednesday 26 April 2017