Mental Health Awareness week was from the 14th to 20th May and focussed on Stress. It therefore seems relevant to discuss Stress from the employers point of view and how this ties into the definition of a disability and discrimination.
Firstly when it comes to employment, the term disabled or defining someone as disabled isn’t determined by a doctor or medical professional, it is determined by the law.
Equality Act 2010: ‘A person is disabled if they have a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities. In the workplace such activities are taken to include things like using a telephone or computer, interacting with colleagues, following instructions, driving and carrying everyday objects.’
To put this into context it is worth considering the following case law: Herry v Dudley Metropolitan Council, this was finalised at the end of 2016.
Some facts about the case are as follows:
Employee was off work for three years with sick notes attributing absence to “stress at work”
After dismissal claimed that he had suffered direct discrimination on the grounds of disability.
When taken to Employment tribunal, the claim failed as they found that under the Equality Act he wasn’t considered disabled under the criteria set out above.
At the Appeal this decision was upheld and they commented that the claimant’s stress was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him”
This sets up the conversation nicely for the differences between stress and mental illness disorders; when it comes to the employment arena.
‘Stress’ is different to a disorder that would qualify someone to be considered disabled, in that there are usually definable environmental factors that are the cause. For example, excessive workloads or you’ve fallen out with your family as two simple examples. When you remove the factor you are able to continue your daily routine without any symptoms.
This is different to mental health disorders where there can be numerous contributors to the illness, i.e. genetics, biochemistry, personality and environmental factors. People suffering with a mental illness or disorder, even without the environmental factors, will continue to suffer and be affected over a long period of time, and often indefinitely.
For employers this means that care should be taken when dealing with employees who are signed off with stress (or refer to workplace stress on their sick notes) however it may not fall under the disability category.
Advice:
Investigate the cause of this stress and not rely solely on the doctors or medical professionals, as stress, anxiety and depression are terms often used loosely.
Find out whether stress is caused by a singular event or scenario, or whether there are numerous factors that could indicate a mental disorder.
For more information on Stress and Mental Health Awareness Week in general you can visit the Mental Health Foundation website here: https://www.mentalhealth.org.uk/campaigns/mental-health-awareness-week
By Kris Kerins BSc (Hons) PGC (Tech Mgmt) – Risk Services Adviser