In this case, the EAT provided guidance on when stress caused by difficulties at work may be a disability.
Mr Herry was employed as a teacher and part time youth worker. He brought wide ranging proceedings against his employers, covering 90 allegations relating to a four year period. After a 39 day hearing, all claims were dismissed. This summary relates to Mr Herry's appeal against a judgment concerning whether or not he was disabled.
Mr Herry had been diagnosed as dyslexic in 1996 when he went to university to study architecture. Following successful completion of his degree, he obtained a teaching qualification, and he was employed as a teacher of design and technology from January 2008. While he taught, he did not mention dyslexia or ask for any adjustments. From May 2010, he lodged many sickness certificates, and he was continuously absent on sick leave from June 2011. Sickness certificates covering the period relevant to his claim referred to "work related stress" and "stress". No certificate referred to depression. The EAT referred to a "dearth of information" in the medical documents as to the nature of the "work related stress" (and this was one of the reasons why Mr Herry failed to show that he was disabled).
Mr Herry told the tribunal about his dyslexia, and (at his request) adjustments were made to the tribunal procedure. However, the tribunal found that, while Mr Herry might require time to digest written and oral instructions, he was "intelligent and able to analyse, with the benefit of a short period of time, documents and instructions and to fully comprehend them."
The tribunal referred to existing case law, which gives guidance on the difference between stress caused by adverse life events, including difficulties at work, and clinical depression and anxiety. Stress caused by difficulties at work is unlikely to constitute a disability (without more), whereas clinical depression and anxiety are likely to be disabilities.
The tribunal held that Mr Herry was not disabled at the time relevant to his complaint. He had not shown that his dyslexia had a substantial adverse effect on his ability to carry out normal activities, other than to occasionally exacerbate his dyslexia. It found that the evidence showed that Mr Herry's stress was "very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events."
Mr Herry appealed unsuccessfully to the EAT on four grounds.
Mr Herry submitted that the tribunal's finding that he was not disabled was inconsistent with the fact that it made adjustments to assist him at the hearing. The EAT rejected this ground of appeal. While "day to day activities" encompass activities which are relevant to participation in his professional life, appearing at tribunal was not an activity relevant to his professional life as a design and technology teacher. The tribunal was not therefore bound to conclude that, solely because the tribunal had made some adjustments to assist him as litigant in person, he was necessarily hindered in his professional life.
The tribunal erred in its approach in determining whether his conditions had a substantial adverse effect and on its approach to the question of whether activities were "normal" day to day activities. This ground of appeal was rejected by the EAT, holding that the tribunal had correctly defined "substantial" as meaning more than minor or trivial and did not reach its decision based on a narrow or inappropriate definition of normal day to day activities.
The tribunal had incorrectly focussed on what Mr Herry could do, rather than what he could not do. The EAT considered that the tribunal's Reasons showed that the correct approach had been applied.
The tribunal had failed to take account of Mr Herry's substantial absences from work and the reasons given on the certificates for his absences. The EAT also rejected this ground of appeal, considering that the tribunal had correctly followed existing case law when determining whether his stress amounted to a mental impairment, which could be a disability, and a reaction to life events, which could not. The judge commented that "a long period off work is not conclusive of the existence of a mental impairment". Mr Herry had failed to establish that he was disabled because he did not establish that he had a mental impairment or the requisite substantial long term adverse effect.
What does this mean for employers?
This case is reassuring for employers, and underlines that, without more, stress caused by difficulties at work will not be a disability. The case does not establish any new principles, but the judge made the following useful observations:
- In some cases, when the individual will not give way or compromise over an issue at work and refuses to return to work, they may suffer very limited apparent adverse effect on 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.
- Employment tribunals are not obliged to find that there is a mental impairment in these cases. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise, are not of themselves mental impairments: they may simply reflect a person's character.