A couple of recent cases serve as a reminder that employees suffering work-related stress or anxiety may qualify as disabled for employment law purposes, meaning employers have a duty to make reasonable adjustments to any elements of the employee’s role which place them at a substantial disadvantage.
Under the statutory definition, an individual is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities; long-term means it has lasted or is likely to last at least 12 months or to end of life. The Equality Act 2010 does not require that a mental impairment is a ‘clinically well-recognised’ medical condition. The tribunal in the recent case of Phillips v Aneurin Bevan University Local Health Board reiterated that the focus is on looking at the impact of the impairment on day-to-day activities for the particular claimant, rather than whether their condition amounts to clinical depression or anxiety. In that case, the effects of the claimant’s work-related stress included being unable at times to leave the house, being unable to socialise with others, and impairment of their ability to sleep and to concentrate. On the facts these amounted to substantial adverse effects on normal day-to-day activities.
More concerning for employers is the ruling of the EAT in Williams v Newport City Council, finding that an employee was disabled due to extreme anxiety even where that would only occur if at work doing their specific role and where there was no significant adverse effect outside work. The claimant started to suffer intense anxiety when the employer added to her role a type of work which might require her to attend and be cross-examined in court; this was due to a previous traumatic court experience. She was signed off sick with stress for 18 months in total, with medical evidence that she was unable to return while the court duty remained part of her role. The employer consistently refused to remove it. The EAT held that the tribunal was entitled to conclude that giving evidence and being cross-examined in court was too specialised to be considered a normal day-to-day activity (although another tribunal might have reached a different view). However, her work involved many normal day-to-day activities, and the claimant was unable to attend work to do any of them due to her extreme anxiety reaction at having the possibility of court attendance hanging over her. Throughout there was no indication that the employer might remove the court duty and so the tribunal was entitled to conclude that the impairment was ‘likely to last 12 months’ from the start. The definition of disability was therefore satisfied, and continued to be so even after the claimant’s health improved such that there were no substantial adverse effects outside of the work environment. The employer therefore ought to have considered reasonable adjustments, in particular whether that aspect of the role could be removed.
The EAT did acknowledge that, where an employee is unhappy with an employer’s decision or a colleague, is nursing a grievance, or refuses to compromise over an issue at work, and as a result refuses to return to work, this is not necessarily caused by a mental impairment. On the evidence a refusal to return to work in these scenarios may be attributable to the employee’s character or personality, rather than being the effect of a mental impairment, particularly if the employee in other respects suffers no or little apparent adverse effect on normal day-to-day activities. Medical evidence supporting a diagnosis of a mental impairment will be key, to show that for medical reasons there is an inability to return to work in the particular circumstances.
It is also important to remember that the duty is only to make reasonable adjustments for disabled employees. Where the extreme stress or anxiety is caused by a peripheral part of a role, it may well be possible and reasonable to reallocate those duties to another employee. The position may be different where the cause of the anxiety is a core part of the role and the employer may then need to consider whether redeployment is an option or whether any other steps could alleviate the situation, prior to considering dismissal.
It is also noteworthy that in this case it was the employer’s intransigence over the court duty that enabled the tribunal to conclude that the workplace-specific mental condition was sufficiently long-term.
For further information, please contact:
Anna Henderson, Partner, Herbert Smith Freehills
anna.henderson@hsf.com
