When the requirement under the then Disability Discrimination Act for disabilities to be "medically well recognised" illnesses was removed it was anticipated that work related stress could become a significant source of disability discrimination claims. The EAT have recently looked again at whether stress is likely to amount to a disability.
Mr Herry was a teacher and youth worker who began having intermittent absences from work in 2010, before being permanently signed off in June 2011. Initially, the sickness certificates referred to recovery from an operation, but from 2013 onwards they referred only to stress or work related stress and anxiety. Mr Herry claimed the behaviour of some of his colleagues caused his stress and prevented him from returning to work. Mr Herry then brought numerous claims of disability discrimination which allegedly took place over a period of 4 years. He identified dyslexia and stress as being the disabilities he suffered from.
It is well known that in order to be a disability a physical or mental impairment must have or be likely to have a substantial adverse effect on an individual's ability to carry out normal day to day activities. It is easy to jump to the conclusion that if ill health causes a lengthy absence (in the case of Mr Herry it was a number of years) then there is little more left to be proven and the individual will have a disability. However, both the Tribunal and subsequently the EAT found that neither of Mr Herry's conditions met the definition of disability under the Equality Act 2010.
The dyslexia was found not to have a substantial adverse impact on Mr Herry's day to day activities (although some adjustments had to be made to the conduct of the original Tribunal to take account of it). There was a dearth of medical evidence in relation to the nature of the stress, and what evidence there was showed Mr Herry did not require to take any medication and was in fact fit to perform his role. Mr Herry was unable to show the stress impacted on his normal day to day activities and instead it appeared it was largely a result of unhappiness with colleagues or decisions and an inability to compromise.
The EAT differentiated between an impairment such as depression or anxiety which could be a disability and a scenario where an individual has an adverse reaction to events at work which results in an inability to attend work but otherwise does not impact on normal day to day activities. They were of the view that a doctor was more likely to class the latter as "stress" or "work related stress". Stress of this kind, with nothing else, would not amount to a disability.
Employers should bear in mind that doctors' sick notes can use descriptions such as stress, depression and anxiety interchangeably and as such they cannot be relied upon as establishing that a condition will amount to a disability under the Equality Act 2010.