As mental health and safety specialists, there are two questions we get asked more often than any other:
1. Is 'work-related stress' a 'disability' under the Equality Act 2010?
2. As an employer what do we have to do?
On the surface, these questions seem straight forward and as such, you may be expecting a black and white answer. But we know things are rarely as simple as that.
Simple answer, no, but it could be.
If I have a physical illness like HIV or cancer, I have a disability according to the Equality Act 2010. Unlike physical disability however, there are no mental health conditions or diagnosis that are automatically treated as a disability.
The Equality Act 2010 defines a disability as:
‘a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities’.
Nothing about a diagnosis. It’s not as simple as producing a doctor’s note with ‘depression’ written on it. In fact, the Equality Act doesn’t talk about 'diagnosis' at all.
The name of the illness or condition is almost irrelevant. Two people with the same diagnosis may exhibit totally different symptoms and be affected in different ways. And whilst they may share some common symptoms, if you’ve met one person with depression, you’ve met one person with depression.
In cases where mental impairment is disputed, the tribunal should focus on the effect the impairment has on an employee's day-to-day activities rather than a specific diagnosis.
Just saying you are stressed does not give you a ‘get out of work free card’.
In his case against Dudley Metropolitan Council, Herry claimed his work situation was the cause of his stress but refused to compromise or return to work. He was unable to produce evidence of how the condition was affecting his day-to-day activities and relied almost exclusively on doctors’ notes saying ‘Work-related stress’. He lost.
The tribunal clarified that it is up to the claimant (in this case Herry) to produce evidence of impairment.
Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not in themselves mental impairments; they may simply reflect a person’s character or personality.
Whether a person is disabled due to mental impairment is a question of law, which means the tribunal decides, not the doctors.
You might think you are on safe ground when Occupational Health produces a report saying the employee is not disabled. Not true.
You may feel your hands are completely tied as soon as an employee produces a ‘fit-note’ (or more accurately perhaps, a sick-note) saying they have work-related stress. Also, not true.
In cases where disability is suspected, most will ask ‘What do I have to do?’
To my mind, this question is problematic because of one word: ‘have’.
What do we have to do implies the bare minimum; a condition that is required; adequate; just acceptable; dare I say, a tick box so we don’t get sued.
If you’re serious about protecting the health and wellbeing of your employees, I would suggest asking what you ‘have’ to do is the wrong question.
More often than not this question comes from HR professionals who genuinely want to get things right for their people as well as the organisation. After all, there are many examples of when things haven’t gone well. Failure to make ‘reasonable adjustments’ is one of the most common types of disability discrimination.
I think the Employment Statutory Code of Practice (which accompanies the Equality Act) sums it up nicely. In paragraph 6.9 it reads:
“In order to avoid discrimination, it would be sensible for employers not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition of disability but to focus instead on meeting the needs of each worker and job applicant.”
This is why the quality of the questions employers ask of medical experts is so important. Asking ‘Are they disabled’ is a waste of time. Ultimately, it’s not up to them anyway. ‘How does the condition affect the employee’s ability to do X’ is far more helpful, and evidences the employer's attempts to be reasonable.
To illustrate the point, two cases of note.
In Gallop vs Newport City Council 2013, the employer was wrong to have relied on one occupational health report saying Gallop’s condition did not amount to a disability. An employer cannot simply “rubber stamp” a medical adviser’s opinion.
But the second case gives us clear guidance on how it should be done. Liberata UK Ltd was found to have acted reasonably in not only relying on occupational health reports. They also requested GP letters and RTWI’s when an employee refused to cooperate. They demonstrated they had done all they reasonably could have to comply with the act.
You might want to consider the following when requesting medical information:
Every case is different when it comes to mental impairment and disability. Every person should be considered individually, with a genuine desire to find a compromise between both parties. Just because a fit note is produced does not automatically mean they are untouchable
Though we are experienced in dealing with employment law, we are not lawyers — if you are asking these questions, always seek specialist legal guidance for answers. For further advice, Acas offers a number of helpful guides, as do the Human Rights Commission.
Terry is Director and Head of Training at Oakwood. He helps clients promote a proactive, rather than reactive approach to both personal safety and the positive mental health of their staff. He has over 12 years teaching experience in these areas, and advises organisations in the development of appropriate risk assessment and policy.