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This is the principle to come out of a recent EAT decision in Herry -v- Dudley Metropolitan Council. With the ever-increasing medicalisation of management issues in the workplace, it provides some comfort for employers. However, that’s not to say that long-term and/or work related stress will never be a disability and as employers, you need to ensure that the right questions are asked, at the right time, to stay on the right side of the law.
Mr Herry, was a part time youth worker and a teacher of design and technology. Within his claim, amongst other things, he alleged disability discrimination, relying on his dyslexia, stress and depression as his disabilities.
Mr Herry was away from work sporadically from May 2010 and then continuously from June 2011. Between May 2010 and April 2013, his medical certificates usually referred to a physical condition, such as “leg-pain and stress” but from October 2013, there was no reference to physical ailments and instead the certificates referred to “stress at work”, “anxiety”, “stress” and such like.
It is trite law that for a condition to amount to a disability, the Claimant must prove the following:
1. that they are suffering from a physical or mental impairment;
2. that the condition is long-term, that is that it has lasted or is likely to last 12 months or more; and
3. that it has a substantial, that being more than trivial or minor, adverse impact on their ability to carry out normal day-to-day activities.
When considering the above, in the first instance the Tribunal did not believe that Mr Herry satisfied all three elements and concluded that Mr Herry was not disabled. In relation to his stress, the Tribunal looked closely at what was keeping Mr Herry off work. It resolved that whilst this was Mr Herry’s stress, his stress was “very largely as a result of his unhappiness about what he perceive[s] to be unfair treatment of him, and to that extent [is] clearly a reaction to life events”, including conducting Tribunal proceedings. Despite his stress lasting for more than a year, the Tribunal was not persuaded that it otherwise had any impact on his normal day to day activities. Mr Herry appealed to the Employment Appeal Tribunal.
Drawing a distinction between stress and mental illness, the EAT agreed with the Tribunal, highlighting that the medical evidence presented by Mr Herry was clear that his stress related to the Tribunal proceedings and that he was otherwise physically and mentally fit and able to work. It helpfully went on to say that “unhappiness with a decision or a colleague, or a tendency to nurse grievances or a refusal to compromise are not of themselves mental impairments: they may simply reflect a person’s character or personality”.
So what should you take from this?
It is not uncommon for an employee’s absence for genuine physical or mental impairments to continue and seamlessly move into the realms of work-related stress as a result of their unhappiness about the handling of their absence. It is therefore important for employers to keep abreast of the reasons for absence and where work-related stress is alleged, promptly flesh out the cause of the stress: exactly what is it about work that has resulted in the employee’s absence and exactly how can matters be resolved for them? When seeking advice from health professionals, direct questions on these points should be asked.
More often than not, where an employee believes that the relationship has broken down to such an extent that they need to remove themselves from the workplace due to stress, they do not ever return to that workplace and so proactive management can save a great deal of time, expense and anguish for both parties.
For further information or to speak to Employment Law solicitor Annie Gray, email firstname.lastname@example.org or call 0113 220 6341.