Everyone has sympathy for employees who are genuinely unwell.
When advising employers about employees suffering from stress,
various medical conditions and resultant absence, it is these words
that come up again and again. Unfortunately, considerable confusion
arises because each of these terms has a different colloquial
meaning from the meaning in an employment law and medical
This word had a very different colloquial meaning thirty years
ago. In Employment Law, 'disability' is a defined term in
the Equality Act 2010. An employee is disabled 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. This is regardless of the precise diagnosis
of the medical condition, although certain medical conditions
(cancer, HIV infection and MS) will always be considered
disabilities. Furthermore, you discount the effect of medical
treatment (including counselling) when considering if an employee
is 'disabled' in terms of the Equality Act.
The reality is that every workforce is likely to have more
employees who are within the definition of 'disability'
than most employers expect. Employees who previously met the
definition but are in remission may well be covered as being
'disabled'. Confusingly, those that have progressive
conditions that do not currently meet the definition but are likely
to in the future may also be covered.
Some pressure can be good and helps us perform better. When this
pressure exceeds our resilience to cope, we may feel stressed. Some
stress is good. Some people use the word instead of
'pressure'. Being under excessive 'stress' for a
prolonged period may give rise to medical conditions such as
"'Stress' in itself is not a medical
condition." As Dr Munna Roy of Integral
Occupational Health Advisers puts it: "This may seem
surprising to employers, bearing in mind thousands of medical
certificates are issued each year with 'stress' as the
'diagnosis'. Effective management of 'stress' -
attributed sickness absence requires differentiation from medical
conditions such as depressive illness."
This is not just about what adjustments managers think in their
view is 'reasonable' depending on an employee's ill
health. Many accommodations are made for employees who have been
ill whether or not they have a medical condition and whether or not
they are 'disabled'.
However, the legal obligation to make 'reasonable
adjustments' in terms of the Equality Act 2010 only arises when
the employee is 'disabled' and where a provision, criterion
or practice (such as a particular workplace practice applied to all
staff), or a physical feature, puts a 'disabled' employee
at a substantial disadvantage compared to an employee who is not
'disabled'. Employers owe this duty to existing employees,
applicants and, in limited circumstances, to disabled former
Employers cannot justify a failure to make a reasonable
adjustment, unless they did not know and could not reasonably be
expected to know about the employee's disability. Where the
duty arises, the issue is whether or not the adjustment was
'reasonable' and this is an objective question for the
courts to ultimately determine. There is a wealth of guidance on
such from the Tribunals and from ACAS.
Understandably, this can at first seem a confusing area of the
law. However, once the language in this area is considered
correctly and the case law and guidance understood it is relatively
easy to navigate through any situation that arises in the workplace
and keep on the right side of the law.
These issues and others will be explored on the 8th February
2016 at the "Dealing with Mental Health Issues at Work"
Seminar. For more information on this seminar and to register your
interest please click
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