In Herry v Dudley Metropolitan Council, the EAT gave guidance on when stress caused by difficulties at work may amount to a disability. In order to be protected by the disability discrimination provisions of the Equality Act 2010, an employee must have a physical or mental impairment which has a substantial, long-term, adverse effect on the employee’s ability to carry out normal day-to-day activities.
Mr Herry was a design and technology teacher and part-time youth worker. In 2012 he lodged a range of Employment Tribunal claims against Dudley Metropolitan Council and Hillcrest School. The proceedings covered 90 allegations and the Hearing lasted for 39 days. All the claims were dismissed. From May 2010 onwards, Mr Herry was off sick many times and was on continuous sick leave from June 2011 onwards. From October 2013 onwards, all his sick notes referred to “stress”. In 2014 he brought disability and race discrimination claims against the Council. He claimed that his disabilities were dyslexia and depression.
The Tribunal held that Mr Herry was not a disabled person at the material time. He had not shown that his dyslexia had a substantial adverse effect on his ability to carry out day-to-day activities and he provided little or no evidence that his stress had any effect on his ability to carry out normal activities.
The EAT made the following observations:
- There is a class of case where the individual will not give way over an issue at work, and refuses to return to work, yet in other respects suffers little adverse effect on their day-to-day activities;
- A doctor may be more likely to refer to the presentation of an entrenched position as “stress” than as anxiety and depression;
- A Tribunal is not bound to find that there is a mental impairment for the purposes of disability discrimination in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise, are not of themselves mental impairments; they may simply reflect a person’s character or personality;
- Any medical evidence put before the Tribunal that supports a diagnosis of a mental impairment must be considered with great care, as must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction.
This case provides useful guidance on disability discrimination claims which relate to stress employees claim to have suffered due to difficulties at work. The focus in such a case will be on whether the employee’s condition has had a substantial long-term effect on their ability to carry out day-to-day activities. The onus will be on the employee to provide evidence of this.