19 December 2016
The Employment Appeal Tribunal has issued an interesting judgment considering when work related stress can amount to a disability for the purposes of the Equality Act. In 'Herry v Dudley Metropolitan Council' the employee alleged (amongst other things) that he had been unlawfully discriminated against by reason of his alleged disability. The employer did not accept that the Claimant had a disability during the relevant period.
As a matter of law a person (P) has a disability if P has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. “Substantial” means more than minor or trivial. The effect of an impairment is “long-term” if it has lasted 12 months, or if the period for which it lasts is likely to be at least 12 months. An impairment is to be treated as having the requisite substantial adverse effect if measures are being taken to correct it and but for those measures, the impairment would have that effect.
The Court considered the extent to which depression by itself can amount to a mental impairment. The authorities noted that depression by itself would usually be insufficient since the question is whether the statutory test has been satisfied. A Tribunal needs to be satisfied that there is a mental impairment and that the requisite elements of the definition are present.
The Court looked at work related stress (the issue in this case) and said:
“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 the question whether there is a mental impairment is one for the Employment Tribunal to assess.”
In the case in question and in light of the evidence, the Tribunal was not satisfied that the legal definition had been satisfied. The Tribunal found that the Claimant did not establish any mental impairment by reference to stress. The Claimant’s “stress” was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him”. There was little or no evidence that his stress had any effect on his ability to carry out normal activities. The Claimant had therefore 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 serves as a useful reminder that in order to be a disabled person for the purposes of the Equality Act, the constituent elements of the statutory definition require to be proven (by the leading of evidence). In many cases the position may be obvious but care is always needed.
Given the complexity of disability discrimination law and the nature of the far reaching obligations upon employers in this area, expert advice is recommended. Speak to your BTO contact for more information.
Judgment: http://www.bailii.org/uk/cases/UKEAT/2016/0101_16_1612.html
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