When does stress at work amount to a disability? In the recent cases of Herry v. Dudley Metropolitan Council UKEAT/0100/16 and Herry v. Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16, the EAT provided some clarification.

The Claimant was a teacher and part-time youth worker. Over a four-year period, he raised 90 allegations in claims in the employment Tribunal against both Respondents. The Tribunal hearing lasted 39 days. All the claims were dismissed.

Following an application for a costs award against him the Claimant brought further claims against Dudley Metropolitan Council alleging disability and race discrimination. He said that his disabilities were dyslexia, stress and depression. The Claimant had been diagnosed with dyslexia in 1996 (while at university). The Council did not concede that the Claimant was disabled (although accepted he was dyslexic). While employed as a teacher, the Claimant did not make anyone aware of his dyslexia, or ask for any adjustments. The Claimant had various absences from work. However, in the period to April 2013, the Claimant's medical certificates referred mainly to a physical injury. It was only after that time that they began to refer to "stress at work", "work related stress", "stress", or "stress and anxiety". There was no reference to depression on any medical-certificates.

The Claimant had advised the Tribunal that he had dyslexia and asked for adjustments to be made, which the Tribunal allowed. However, the Tribunal ultimately found that the Claimant was not disabled at the relevant time. It noted that he was "intelligent and able to analyse, with the benefit of a short period of time, documents and instructions and to fully comprehend them". He had not shown that his dyslexia had a substantial adverse affect on his ability to perform day-to-day activities. The Tribunal considered that his 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". The Claimant appealed to the EAT.

The EAT found the Tribunal had been correct to conclude that the Claimant was not disabled at the material time. The EAT did not agree that just because the Tribunal had agreed to make some adjustments for the Claimant in the Tribunal hearing, it was then bound to agree that he was disabled.

The EAT did not agree that the Tribunal had incorrectly defined substantial adverse effect. The Tribunal's observation that the Claimant's stress was a reaction to life events was a reference to previous case law where Lord Justice Underhill had made a distinction between a mental impairment (which could be a disability) and a reaction to life events (which could not). The EAT said that where there is a work-based dispute and the employee will not compromise, or return to work, this will often be recorded by medical practitioners as stress, even where that individual suffers no, or little, obvious impact on their normal day-to-day activities. It clarified that in these circumstances, a Tribunal is not bound to find there is a mental impairment for the purposes of assessing if a person is disabled under the Equality Act. Any medical evidence put before a Tribunal in such a case must be carefully scrutinised, but the decision on whether there is a mental impairment is ultimately one for the Tribunal.