Damieon Herry was a teacher of design and technology at Hillcrest School in Dudley. I won’t excite you with the detail of his 90 complaints against his employer, the 39 day trial, the 317 page judgement or the second action raising new complaints of disability and race discrimination, but I do want to mention the Employment Appeal Tribunal’s important guidance on the relationship between stress and disability.
When Mr Herry launched his claim of disability discrimination he’d been off work for more than 3 years. For about the last year his absence was variously certified as “stress at work”, “work related stress”, “stress” or “stress and anxiety” and he cited this as a disability. One of his fit notes suggested a phased return to work and an OH report indicated Mr Herry was fit for work but outstanding non-medical issues in his workplace were causing him stress. If you’re thinking, how can someone who’s been absent from work for more than 3 years suffer from work related stress, read on. The EAT said:
“Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse a grievance, or a refusal to compromise….are not of themselves mental impairments; they may simply reflect a person’s character or personality…”
The EAT went on to say that a long period off work is not conclusive evidence of an actionable mental impairment. It approved an approach in which one first considers if the individual’s ability to carry out normal day-to-day activities is adversely affected then assesses impairment in the light of those facts. In particular it drew a clear distinction between a mental impairment and a reaction to life events giving us the proposition that long term stress is not necessarily a disability unless there’s something else going on. The tribunal also noted in passing that conducting litigation is not a normal day-to-day activity; amen to that your Honour.
As always this sort of guidance is fact sensitive but it’s given me valuable support in an argument I’m advancing at a hearing on Thursday and in another case which is brewing. Oh yes, stress is still a very significant justiciable issue and there’s not much Father Christmas can do about it. That said I hope he gets down your chimney or through your keyhole and I join with him in wishing all my readers a very happy Christmas.