A recent Employment Appeal Tribunal decision in the case of Herry v Dudley Metropolitan Borough Council considered whether long term stress can constitute a disability for the purposes of the Equality Act 2010. The answer in this case was no – not by itself.
In this case, Mr Herry asserted that he had two disabilities: dyslexia and stress. He made some 90 allegations of race and disability discrimination and was signed off work for ‘stress’ and ‘work-related stress’.
The original Employment Tribunal and the Employment Tribunal both found that there is a distinction between stress and mental illness. Mr Herry was not disabled as he failed to establish a mental impairment or show a substantial impact arising from the stress. He failed to prove that, beside lengthy absences from work, the stress he was suffering from had any impact on his normal day to day activities.
This judgment is useful because it makes a helpful distinction between situations where an employee has a legal disability and one “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…. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments”.
This case is certainly encouraging for employers, however our advice remains to prevent such situations where employees may be exposed to highly stressful circumstances which may lead to a diagnosis of work related stress. If you have a ‘difficult’ employee like Mr Herry who appears to nurse grievances it may be useful to consider workplace mediation to try to get to the root of the problem and resolve it.
For more detailed advice on dealing with difficult employees, please contact a member of our specialist employment law team.
The Backhouse Solicitors Team
Tel: 01245 893400
