Most employers quiver at the mention of stress, anxiety or depression for fear of a disability discrimination claim. With a“fit-note culture” upon us that is hardly surprising. However, stress, anxiety and depression are not always disabilities for the purposes of the Equality Act 2010 (EA)… Interested? Read on…
Four key questions to determine disability
Employers are often wary when dealing with employees who have a disability. It is often advisable to be cautious when an employee makes you aware that they are, or maybe, suffering from stress, anxiety and depression. This is because stress, anxiety and depression are mental impairments and may be classed as a disability and under the EA.
The important words in the last sentence are “maybe”. Remember that the question of whether an individual is disabled is not usually a question with a simple yes or no answer. It usually needs to be answered by carefully considering the evidence in each case and the following four questions:
Does the person have a physical or mental impairment?
This is quite self-explanatory.
Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
Remember this is all judged as if the employee wasn’t taking any medication. Day to day activities are just that – cooking, washing your hair, catching a bus, things like that. It does not relate to work activities – that is not the test. This is likely to depend on the evidence in each individual case.
Is that effect substantial?
The effect must be more than minor or trivial. Again this is fact specific but quite common sense. For instance, if an individual has difficulty getting dressed because of low motivation, this may be considered to be a substantial adverse effect.
Is that affect long-term?
It must have lasted, or is likely to last at least 12 months, or is likely to last for the rest of the life of the person affected.
Stress, anxiety and depression
This is a hot topic at the moment and one that has recently been considered by the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) in a case called Saad v University Hospital Southampton NHS Trust and another.
The case and what it means
Mr Saad worked as a Specialist Registrar in cardiothoracic surgery at University Hospital Southampton. His fixed term contract was not renewed. He argued that he was disabled and that he had been discriminated against as his employer dismissed him (not renewing a fixed term contract does count as a dismissal).
The ET looked at the evidence before it and accepted that Mr Saad suffered from a depressive and general anxiety disorder and that this was an impairment for the purposes of the EA. However, the ET decided that the impairment did not have a substantial adverse or a long-term effect on his ability to carry out normal day-to-day activities.
Mr Saad appealed the ET’s decision to the EAT. The EAT stated that the ET was entitled to decide, on the evidence before it, that the impairment did not have a substantial adverse effect on Mr Saad’s normal day-to-day activities…they were right and he was not considered as a disabled person even though he had a depressive and general anxiety disorder.
This case is a good reminder that just because an individual has a mental impairment (i.e. stress, anxiety and/or depression), it does not automatically mean that they will be classed as a disabled person under the EA. In order to be classed as disabled, an individual will have to satisfy the four questions above.
The decision in the case reinforces that, although medical evidence is important, it is for the employer to assess, and then ultimately the ET, to decide whether the impacts of the individual’s condition are serious enough to be classed as a disability. All of the requisite elements (including substantial, long-term effect on day-to-day activities) need to be present.
We need not be quite so scared of stress, anxiety and depression. Although please still do be wary of these conditions, and please still seriously consider the medical evidence before making any decisions. It is nice to repeat some further good news for employers.
For more information and for support, please contact our Employment & HR team on 01332 340 211.