UK: A Long Period Of Time Off Work Is Not Conclusive Of The Existence Of A Mental Impairment

Last Updated: 27 January 2017
Article by Taylor Wessing

Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16

Why care

In order to assess whether an individual has a disability for the purposes of the Equality Act 2010, a tribunal must ask itself whether

  • the individual has a physical or mental impairment
  • which has an adverse effect on their ability to carry out normal day-to-day activities
  • if so, that effect is substantial
  • if so, whether that effect is long-term.

In J v DLA Piper UK LLP (2010), the EAT noted that whilst clinical depression and anxiety may be an impairment, stress (including work-related stress) on its own without other symptoms will likely not.

In this case, the EAT considered whether the Tribunal was right to decide that an employee off work for several years was not disabled, and also whether the Tribunal had properly considered his ability to pay all of the Respondents' costs under a costs order.

The case

The Claimant, who was dyslexic, was employed as a teacher and part-time youth worker. He brought two claims against the council and his school (the Respondents), the first in 2012 and the second in 2014. The 2012 proceedings were heard in a hearing lasting 39 days and the Tribunal's written reasons dismissing all of his claims were 317 pages long. The Tribunal ordered him to pay all of the Respondents' costs (£110,111.89) even though at that time, he was unfit to work, reliant upon benefits and with a disposable income of £22.08 per month.

The Claimant was on continuous sick leave from his job from June 2011 and although his sickness certificates initially referred to a leg operation and recovery, by October 2013 they referred to work-related stress and anxiety. A GP's letter in November 2014, produced in the course of litigation, stated that the Claimant had depression.

In the 2014 proceedings (which were for disability and race discrimination), the Claimant stated that his disabilities were dyslexia, stress and depression. The Tribunal found that the Claimant was not disabled at the relevant point, since he had not shown that either the dyslexia or the stress had a substantial adverse effect on his ability to carry out day-to-day activities. The Tribunal found that from the evidence, it appeared that the Claimant's stress was "very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events".

The Claimant appealed, both against the costs award and the finding that he was not a disabled person under the Equality Act.

The EAT rejected the appeal against the finding that the Claimant was not disabled. The Tribunal was not bound to hold that Mr Herry had a disability because it had made some adjustments for his dyslexia during the hearing. The nature of what was required when he attended a lengthy tribunal dealing with complex issues was quite different from the reading, writing and comprehension required in his job as a design and technology teacher or another normal day-to-day activity.

The EAT found that the Tribunal did look for evidence that the Claimant's dyslexia and stress had a substantial adverse effect on his normal day-to-day activities but it could not find it. Simply, there was "a dearth of information" in the medical documents to support his submission.

Any medical evidence that supports a diagnosis of mental impairment must be considered with great care, but ultimately the question of disability is for the Tribunal to decide. A long period off work may arise where reactions to circumstances become entrenched and is not conclusive of the existence of a mental impairment. The EAT said,

"Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality."

There are some cases where an employee will not give way or compromise over an issue at work, but in other respects suffers little or no adverse effect on normal day-to-day activities. In the view of the EAT, a doctor is more likely to refer to this as "stress" than as anxiety or depression.

The EAT upheld the Claimant's appeal against the costs order. Although the Claimant had clearly acted unreasonably in pursuing more than 90 separate allegations despite advice that he would not succeed, the Tribunal had not given adequate reasons for ordering an amount that would have taken the Claimant several hundred years to pay off. Since the Tribunal did not sufficiently explain why its award was reasonable and proportionate, the EAT allowed the appeal and referred back to the same Tribunal regarding the issue of whether, and if so how, to have regard to Claimant's ability to pay.

What to take away?

It is not uncommon for employees to argue that they are protected by the Equality Act when suffering work-related stress. The EAT's judgment provides guidance on the current law and is clear that claimants must show that their condition is a mental impairment (having a substantial adverse effect on their day-to-day activities) rather than an adverse reaction to difficulties at work. Words like "stress", "depression", and "anxiety" are used loosely and doctors certificates alone cannot be relied on to establish whether a condition falls within the Equality Act.

Costs awards and bankruptcy

No matter how unreasonable a party's behaviour may have been, Tribunals should give proper consideration to future earning capacity and ability to repay an amount ordered and should explain their reasons if they decide not to cap or award a proportion of the award of costs.
In this case, the Respondents had served statutory demands (as a precursor to bankruptcy proceedings) upon the Claimant to enforce the costs award. It was unclear why this decision had been taken since bankruptcy would not, in the EAT's view, have prevented the Claimant bringing further employment tribunal proceedings and would not have helped the Respondents recover their costs. The EAT said that, if a party intends to serve a statutory demand on the other in the near future, it should inform the tribunal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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