The Employment Appeal Tribunal considers when depression/anxiety can constitute a mental impairment for the purposes of the Equality Act.
Mr Herry, a design and technology teacher, was off work for over three years with sickness certificates referring in the latter stages of his absence to 'stress at work ', 'work-related stresses and 'stress and anxiety'. An occupational health (OH) report stated that Mr Herry took no medication for his stress, was physically and mentally fit for work and that from a 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 that are causing stress'. A further medical certificate observed that Mr Herry felt 'the behaviour of certain individuals [is] what is stopping him from returning to work at the school and causing his stress'. However, there was no evidence that stress had any effect on his ability to carry out day-to-day activities, other than occasionally to exacerbate his dyslexia. His claim for disability discrimination at the employment tribunal failed because it was held that he did not have a disability for the Equality Act 2010. He appealed this to the Employment Appeal Tribunal (EAT) which upheld the decision.
The EAT referred to J v DLA Piper UK  ICR 1052 which distinguished between two states of affairs which can produce broadly similar symptoms of low mood and anxiety. The first described depression as a 'mental illness' or 'clinical depression,' which is an impairment under the Equality Act. The second, according to the EAT in J, 'is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon be forgiven – "adverse life events"'.
The EAT in Herry took a similar approach to diagnoses of 'stress' as J had done to 'depression'.
No doubt this judgment will be used by employers in disability discrimination proceedings where the disability relied on involves workplace stress or perhaps even reactions to other 'adverse life events'. However, certain facts in Herry must be borne in mind.
First, there was little or no evidence that Mr Herry's condition had any impact on his day-to-day activities, other than his absence from work. In fact the EAT also comments on the 'dearth of information in the medical documents as to the nature of the "work related stress"'.
It will also be remembered that the OH report had said he was physically and mentally fit for work, if his workplace issues were resolved.
Finally, the EAT in Herry specifically states that in a case such as Mr Herry's the 'Employment Tribunal is not bound to find that there is a mental impairment' (emphasis added). The fact is that they might find that there is an impairment. As the EAT went on to say, 'in the end the question whether there is a mental impairment is one for the Employment tribunal to assess'. Tribunals are more likely to find an impairment if the Claimant can put forward evidence of other ways in which his or her life has been impacted.
Herry is not the end of work-related stress disability discrimination claims. There are some positives: it is now clear that expecting a diagnosis of work-related stress and an absence from work for 12 months to speak for itself in establishing a disability is a risky tactic. Primary focus in evidence gathering and presentation should be on what is provided for in section 6 of the Equality Act and a sharpening of that focus is not unwelcome. If the claimant can provide evidence to demonstrate a substantial adverse effect on his or her day-to-day activities, and can show that this has lasted or is likely to last for 12 months, then he or she will have satisfied the definition of disability.
It should also be stressed that the cause of the impairment said to amount to a disability is irrelevant, and any attempt to suggest that J and Herry points towards work-related stress as somehow not being capable of amounting to a disability is entirely misguided.
In fact, we would suggest that the reasoning in Herry be confined to the 'class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way of compromise over an issue at work and refused to return to work, yet in other respects suffers no or little adverse effect on normal day-to-day activities' (Herry para 56, emphasis added).
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