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Long term stress and disability

28th December 2016

Stress, and in particular work-related stress, is a common cause of absence from work. We are often asked about stress in the context of the law relating to disability discrimination. Some individuals believe that because they are off work with a diagnosis of stress that they are protected by the anti- discrimination legislation. A recent decision in the Employment Appeals Tribunal (EAT) has confirmed the legal approach to stress within the disability discrimination legislation.

The case, Herry v Dudley concerned an individual that asserted that he was disabled with two conditions, namely dyslexia and stress. Over 90 allegations of discrimination were made against the employer. 

The EAT referred to the previous ruling in the case of J v DLA Piper in considering the question of whether the stress amounted to a disability under the Equality Act 2010, and hence could be relied upon in a claim of disability discrimination. In that previous case the EAT considered the distinction between stress and depression. It was accepted that depression may well amount to a disability under the legislation, subject to it having lasted (or being expected to last) long enough. The legislation with some specific exceptions) requires a condition to have lasted or be likely to last at least 12 months before it can amount to a disability. In that case the EAT noted that in most cases "stress" that is sufficient to prevent the individual from attending work does not often last over 12 months. It also noted that "unhappiness with a decision or a colleague, or a tendency to nurse a grievance or a refusal to compromise are not themselves mental impairments." In regard to conditions that recur it noted that the Tribunals need to take a view on each case on its own facts. In J v DLA Piper the EAT noted that if a depression condition were to recur frequently then it may be reasonable for the Tribunal to conclude that the condition is a "continuing" condition, and so may meet the minimum duration threshold to amount to a disability even if the episode in question itself had not already lasted 12 months before the individual brought the claim of disability discrimination. It went on to note that if the gap between episodes ran into many years, then there may not be a continuing condition to aggregate the periods to together to reach the minimum duration threshold of 12 months. 

In the case of Herry v Dudley the EAT noted that stress will not usually amount to a disability under the disability discrimination legislation without something more- such as could include depression, as "stress" as usually transitory and short lived. Similarly in this case the individual failed to establish a mental impairment or to show that there was substantial adverse effect, failing to present evidence at the Tribunal on this matter.

The case illustrates the fact that stress, even if it is severe, will not normally amount to a disability unless it can be demonstrated that it has already lasted for at least 12 months or is likely to last at least 12 months. For individuals this emphasises the need to obtain clear medical advice on this topic. From the view of employers the case emphasises the fact that employers need to address grievances or unhealthy work practices promptly and carefully in order to avoid the risk of causing excessive stress to employees which could eventually develop into or contribute towards depression.

If you need any help in dealing with the issues raised in this article, do not hesitate to contact us at Hallett Employment Law Services Ltd.                

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