EAT guidance on when workplace stress may be a disability
According to the CIPD Absence Management Survey 2016, the average level of employee absence has fallen from 6.9 days per employee per year in 2015 to 6.3 days. That's the good news. Worryingly, nearly a third of organisations reported an increase in stress-related absence and two fifths an increase in mental health problems such as anxiety and depression.
Whether or not stress constitutes a disability within the meaning of the Equality Act 2010 is often difficult to determine. In the recent decision of the EAT in Herry v Dudley Metropolitan Council and Herry v Dudley Metropolitan Council and the Governing Body of Hillcrest School (December 2016), useful guidance was given on when workplace stress will and will not be a disability.
Mr Herry commenced his employment as a teacher with the Council in January 2008. He brought two sets of proceedings in relation to his employment.
The First Proceedings
The first proceedings commenced in 2012 and consisted of more than 90 serious, wide-ranging allegations covering a period of more than four years. The hearing lasted 39 days and in October 2014 all the claims were dismissed. The Council made a successful application for costs. The Employment Tribunal found that Mr Herry had acted unreasonably in bringing and pursuing the proceedings. His union had advised that he had no reasonable prospects of success and two legal advice centres were not prepared to support his case. The Council's conduct of their defence was “proportionate and reasonable throughout”. Although Mr Herry was "impecunious" at the time (being off work long-term sick), he was ordered to pay all of the Council's costs which were subsequently assessed at £110,111.89. This was on the basis of his future earning capacity as a qualified teacher.
The Second Proceedings
In 2014, Mr Herry commenced a second set of proceedings against the Council alleging race and disability discrimination in relation to the period April 2014 to June 2014 (the material time). His disabilities were stated to be dyslexia and stress and depression.
From May 2010, Mr Herry had many periods of sickness absence and was in fact on sick leave continuously from June 2011. Initially his absences related to a physical injury (a fractured ankle/leg pain). From October 2013, his sick notes did not refer to any physical problems but stated “stress at work”, “work related stress”, “stress”, or “stress and anxiety”. There was no reference to depression in the sick notes. It was generally accepted that his stress was caused by the ongoing grievances he had against his employer, which formed the subject of the first proceedings.
Tribunal decision on the Second Proceedings
Section 6 of the Equality Act 2010 provides that a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Mr Herry had been diagnosed as dyslexic in 1996 but during his employment at the Council he did not tell his colleagues about the dyslexia or ask for adjustments.
The Council did not accept that the dyslexia amounted to a disability.
The Employment Tribunal agreed and held that Mr Herry was not, at the material time, a disabled person. The dyslexia did not have a substantial adverse effect on his ability to carry out normal day- to-day activities as evidenced by the fact that Mr Herry did not ask for any adjustments at work and his colleagues were unaware of his condition.
In relation to the stress, Mr Herry did not take any medication for this and an occupational health report from 17 March 2015 stated that, Mr Herry was mentally and physically able to perform his role. It also said that, from a medical point of view, Mr Herry could return to work as soon as possible but there were “still outstanding management (non-medical) issues at the workplace which are causing stress”.
The Employment Tribunal considered the decision in J v DLA Piper UK LLP (EAT 2010), which gives guidance on when stress can amount to a disability.
In that case, the EAT distinguished between stress that was caused by a mental condition such as clinical depression and stress caused by adverse life events such as problems at work. In the former case the condition would amount to a mental impairment for the purposes of the Equality Act 2010, but in the latter it would not. The EAT recognised that the borderline between the two was often blurred. However, it stated, this rarely caused a real problem in practice as stress caused by adverse life events would generally not fulfil the long-term requirement of the legal definition of disability in that it would not be likely to last for at least 12 months.
In Mr Herry's case, it was argued that as Mr Herry had been off work and unable to teach for so long because of stress there was a long-term adverse effect on his ability to carry out normal day-to-day activities.
The Employment Tribunal concluded that his stress was a reaction to life events (the ongoing grievances against the Council) and did not derive from a mental impairment. Further Mr Herry had provided little or no evidence that the stress had any effect on his ability to carry out normal day-to-day activities. It therefore concluded that the stress did not amount to a disability.
Mr Herry appealed the costs awards from the first proceedings on the basis that there was no explanation as to why he should pay all of the Council's costs rather than only some of them and that his means had not been properly considered. He also appealed the finding that he did not have a disability. Both appeals were heard together.
On costs award
The appeal in relation to the costs award was successful in part. The Employment Tribunal had given a sufficient explanation for the reasons why Mr Herry should pay 100% of the Council's costs namely because he had unreasonably instituted and pursued the proceedings. The Employment Tribunal was not required to go on and consider Mr Herry's ability to pay the costs but, as it had done so, it should have explained why it thought his future earning capacity was such that he could meet the costs award. The case was remitted to the Employment Tribunal for reconsideration of this point. The EAT added by way of an aside that, if the Employment Tribunal had declined to consider his ability to pay, it would have needed to have set out its reasons for so doing.
On whether stress amounted to a disability
As for the question of disability, the appeal was dismissed. The EAT stated the Employment Tribunal was not bound to find that Mr Herry was disabled because he had been certified as unfit for work by reason of stress for a long period.
The Employment Tribunal had concluded Mr Herry's stress was largely the result of his unhappiness about what he perceived as unfair treatment by the Council (an adverse life event) and there was little or no evidence that his stress had any effect on his ability to carry out normal activities. The EAT found the Employment Tribunal had correctly concluded, following the J v DLA Piper UK LLP distinction, Mr Herry's stress did not amount to a mental impairment. It stated that there can be cases where a person's reaction to adverse life events becomes entrenched; where a person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. An Employment Tribunal is not bound to find there is a mental impairment in such a case. Unhappiness with a decision of a colleague, or a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments, but simply reflect a person's character or personality. A long period off work was not conclusive of a mental impairment.
The Employment Tribunal had correctly concluded that Mr Herry had failed to establish a disability for the linked reasons that he did not establish a mental impairment and did not establish the requisite substantial long-term adverse effect.
It is important to remember that it is for the Employment Tribunal to decide whether an individual satisfies the definition of disability. In doing so it will need to consider every element of the Equality Act 2010 definition - was there a physical or mental impairment, does the impairment have an adverse effect on the ability to carry out normal day-to-day activities, is that effect substantial and is it long-term?
Whilst an employee's numerous sick notes may refer consistently to stress (as in Mr Herry's case) evidence will still need to be produced to show the extent of the impact of the stress on the ability to carry out day-to-day activities. That is for the employee to show and was something that Mr Herry failed to do.
Don't forget that the Health and Safety Executive (HSE) provides a significant amount of practical advice and help in identifying and managing stress in the workplace and it has developed a model of good practice, called the “Management Standards”. The HSE has identified six main risk factors for work-related stress:
- The demands placed on the employee, covering such issues as workload, work patterns and environment;
- The control the employee has over their work and workload and how much say the person has in the way they do their work;
- The support available to the employee, this includes the encouragement and resources provided by the organisation, line management and colleagues;
- Relationships in the workplace and the need to promote positive working to avoid conflict and dealing with unacceptable behaviour;
- The role the person has, this covers such issues as the clarity and objectives of the employee’s role;
- Organisational change and how this is managed and communicated in the workplace.
Finally, the crucial importance of medical evidence in determining whether or not a person has a disability is also illustrated by another recent EAT decision Taylor v Ladbrokes Betting and Gaming Ltd. The issue in this case was whether type 2 diabetes was a progressive condition under the Equality Act 2010. At a preliminary hearing, the Employment Tribunal judge considered one medical report and a follow up letter from the same medical expert (who did not give evidence in person) as well as evidence from Mr Taylor.
The Employment Tribunal judge concluded that Mr Taylor did not have a disability. This was on the basis that the medical evidence indicated that Mr Taylor's type 2 diabetes did not have a substantial adverse effect on normal day-to-day activities and that he could easily control the condition by means of lifestyle, diet and exercise and if he did that, there was only a small possibility of the condition progressing to type 1 diabetes if the advice on lifestyle etc was followed. Mr Taylor appealed and argued that the medical evidence did not support the conclusion reached by the Employment Tribunal judge.
The EAT agreed and held that the Employment Tribunal judge's findings were not supported by the medical evidence and that what "has gone wrong in this case" is that either the medical expert has not been asked the right questions or the whole process would have benefited from the medical expert being present to clearly answer questions that might have arisen. The EAT remitted the matter to the same Employment Tribunal for rehearing in the light of further medical evidence and stated that a clearer set of questions needed to be addressed or that the medical expert should attend to give evidence in person and to be cross-examined.