A judgment from the Appeal Tribunal has been handed down and comes as a relief to many practitioners who now welcome judicial guidance on this common problem.
In the case of Herry v Dudley MBC, the employee claimed to be disabled by virtue of workplace stress. His doctor supported this and reported him as suffering from stress.
This gives rise to a problem all too frequently, that being of an employee who cries stress at the first sign of a decision that he or she doesn’t like. The employer is then faced with advice which is too cautious in such situations, often scared of being caught by a claim of disability discrimination.
It is very important to note that each case will be decided on its own facts, but this case is encouragement nevertheless in dealing with such cases on a business focused basis, rather than being stunned into inactivity by spurious claims of stress and disability.
In the judgment from the EAT, the only paragraph you really need to read is paragraph 56.
The employee in this case was signed off for long periods, with the reason given on the sick note as stress, work related stress and stress at work. It was clear to all, and accepted, that problems at work were causing the stress that was alleged, and the employee was otherwise fine to pursue his life and hobbies.
The Appeal Tribunal referred to a previous case on the matter that tried to distinguish between low mood and anxiety. The first may be depression and is unquestionably an impairment for the purposes of disability discrimination, and the second is a reaction to adverse circumstances (such as problems at work).
It was said that a tribunal should simply start by asking whether the condition has a substantial adverse impact on the employee’s ability to carry out “day to day” tasks, and whether it has lasted, or is likely to last, more than 12 months. If so, then it is likely to be covered for disability discrimination.
The EAT said that there are times when a person’s reaction to circumstances can be entrenched, and the person will not give way or compromise. Yet in other aspects of their life, they are unaffected. A doctor may be more likely to class such a reaction as stress than depression. AN EMPLOYMENT TRIBUNAL IS NOT BOUND TO FIND A DISABILITY IN SUCH A CASE. Neither is it so bound where a person is unwilling to return to work until a problem is resolved to their satisfaction.
The case is Herry v Dudley Metropolitan Council and can be read in full at the following link: