Many employers will be familiar with employees submitting sick notes for stress and the difficulty of determining whether long term stress falls under the Equality Act 2010 definition of a disability. The Equality Act defines a disability as “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability carry out normal day-to-day activities”.
A recent Employment Appeal Tribunal (EAT) decision in the case of Herry v Dudley Metropolitan Council has confirmed that stress in itself does not amount to a disability. The Claimant asserted two potential disabilities: dyslexia and stress. He made more than 90 allegations of race and disability discrimination. The EAT considered the distinction between stress and a “mental impairment” (which is what would be required to fulfil the disability definition) in its judgment, stating “Unhappiness with a decision or a colleague, or a tendency to nurse grievances or a refusal to compromise are not of themselves mental impairments.” The Claimant therefore failed to establish a “mental impairment” or to show “substantial impact”, presenting little or no evidence that his stress had any impact on “normal day-to-day activities”.
Whilst the decision confirms that stress in itself does not meet the necessary criteria to qualify as a disability under the Equality Act, employers should still be aware that sick notes referring to conditions such as stress or anxiety may be evidence of symptoms of an underlying disability such as depression. If in any doubt, employers should seek further medical input and legal guidance on this issue. Herry v Dudley Metropolitan Council UKEAT/0100/16/LA
David Potter
Partner
0845 274 6819