By Will Macauley
Does the fact that an employee is signed off work with stress for a prolonged period of time automatically render them disabled within the meaning of the Equality Act 2010 (“the EqA”)? If so, this has serious practical consequences for employers keen to avoid claims of disability discrimination.
The Employment Appeal Tribunal (“EAT”) recently provided some useful guidance on the issue in the case of Herry v Dudley Metropolitan Borough Council.
The employee in this case, D, was signed off work for several months with sick notes citing ‘stress and anxiety’, ‘work related stress’ and ‘stress at work’. The medical reports stated that ‘the behaviour of certain individuals [is] what is stopping [the employee] from returning to work…and causing him stress’. They also referred to ‘management issues…which are causing stress’.
The EAT considered whether D was disabled within the meaning of the EqA. The EqA broadly defines disability as a physical or mental impairment which has a substantial and long term adverse effect on the individual’s ability to carry out normal day to day activities.
The EAT held that D was not disabled within the meaning of the EqA.
They referred to a previous decision (J v DLA Piper) which highlighted an important distinction between a ‘clinical condition’ and a 'reaction to adverse circumstances'. Although both may claim to be ‘depressed’, the law differentiates between 1) the employee with clinical depression and 2) the employee who is unwilling to return to work until an issue had been resolved to their satisfaction, but who otherwise suffers little or no effect on normal day to day activities. The first employee is undoubtedly suffering from a mental impairment within the meaning of the EqA, the second is not.
Applying this to the facts of the case, the EAT considered that D was not disabled within the meaning of the EqA. D was unhappily reacting to what he perceived as unfair treatment of him at work but there was no evidence that his normal day to day activities were affected in any way. The EAT was clear that the Tribunal was not bound to find that D had a disability purely because he had been signed off with stress for a long period of time.
What does this mean for employers?
When employers are faced with an employee who is signed off work with stress, thought needs to be given as to whether the individual has a condition which qualifies as a disability. It should be remembered that work related issues can result in real mental impairment, especially for those susceptible to depression and anxiety. However, as has been demonstrated by this decision, an employee who is signed off work with stress for a prolonged period of time should not automatically be rendered disabled; medical evidence should be scrutinised to see whether a genuine mental impairment exists.
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