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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.