Stress is an increasing factor in sickness absence. In their 2011 survey, the CIPD and Simplyhealth found that it had overtaken cancer as the main cause of taking time off for illness. But can stress in and of itself be a disability?
The EAT made some helpful findings in Herry v (1) Dudley Metropolitan Borough Council and (2) Governing Body of Hillcrest School. It found that “there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in all other respects suffers little or no apparent adverse effect in their normal day-to-day activities”.
Mr Herry was an architect who was employed by Dudley Metropolitan Council and the governing body of Hillcrest School. He brought 90 wide-ranging allegations that spanned a four-year period. Unsurprisingly, given the volume of allegations, the case lasted for more than a month. Ultimately, the tribunal found that Herry had been unreasonable in pursuing his claims and, given that he had ignored costs warnings, and had “steadfastly and unreasonably refused to accept the non-discriminatory explanations provided for the acts he complained of”, he was ordered to pay the respondent’s costs.
Stress and depression
The issue of disability was analysed by the Employment Appeal Tribunal (EAT), which looked closely at Herry’s medical evidence. His sickness absence notes were found increasingly to refer to ‘work-related stress’ and ‘stress and anxiety’. Herry had no sick note that referred specifically to depression. The employment tribunal had found that his stress was “very largely a result of his unhappiness at what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.
The EAT found that in these types of cases, doctors are more likely to refer to ‘stress’ rather than ‘depression’. In such cases, the employment tribunal is not bound to find that stress is a disability. Being unhappy with a colleague or a decision made by an employer, having a grievance or refusing to compromise at work are not mental impairments – they may simply reflect an individual’s personality or character.
Ultimately, any medical evidence presented to the employment tribunal must be considered with care and, in the end, the question of whether there is actually a mental impairment is one for the employment tribunal to assess. It said in this case there was a “dearth of information” in the medical evidence as to the nature of ‘work-related stress’.
Advice for employers
For employers it is worth noting that the tribunal looked in detail at what medical evidence there was, and reiterated the clear distinction drawn by Lord Justice Underhill in J v DLA Piper between a mental impairment (which is capable of being a disability) and a reaction to life events (which is not).
The lesson here is to make sure to review the medical evidence carefully and, even in the face of someone who is clearly vexatious, to act reasonably. Remember the principle that the judge is at your shoulder watching how you proceed.
Jo Mackie is a senior solicitor at Didlaw