As most, if not all, employers will know, employees with disabilities are protected in law in terms of their employment. This has been the case since the introduction of the Disability Discrimination 1995 (DDA) which has since been replaced by the Equality Act 2010 (EqA). As a result, employers cannot treat a disabled employee less favourably because of their disability or for a reason relating to their disability. In addition, employers are under a duty to implement what is commonly known as reasonable adjustments to the workplace and/or to the role being undertaken, if the disability in question places the employee at a substantial disadvantage in comparison to their non-disabled colleagues.
Of course, in order to comply with their legal obligations, employers must have an awareness of their employee’s disability. Whilst it might be easy to identify disabled employees if they have a physical impairment such as blindness or a condition which prevents the employee from walking, this task becomes more difficult in circumstances where an employee is suffering from a mental impairment such as depression.
Of course not every type of illness or condition will result in an employee being categorised as disabled. Whether an employee is protected under the Equality Act 2010 will depend on the extent of the impairment and the effect it has on the employee. In order to qualify as a disability, the impairment must have a substantial adverse effect on the employee’s ability to carry out day to day activities. The impact cannot therefore be trivial. But what are these “day to day activities”?
Under the former regime of the Disability Discrimination Act 1995, an impairment was said to affect the ability of the person to carry out normal day-to-day activities only if it affected one of the following:
- manual dexterity;
- physical co-ordination;
- ability to lift, carry or otherwise move everyday objects;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand;
- perception of the risk of physical danger.
However this list of capacities has not been replicated in the EqA. There has been a suggestion that this omission might make it easier to establish disability, however the test largely remains the same and there has been very little change in approach by Employment Tribunals.
So if it is the case that you have an employee who has confirmed that they are suffering from depression, or whom you suspect is suffering from depression, consider whether their ability to remember, concentrate learn or understand has been affected. Have they been forgetful? Have they been able to follow instructions? Have they been taking a longer time to carry out their tasks when compared with their colleagues? Examples quoted in the previous guidance included whether an individual was able to watch and follow a television programme or read a book, clearly day to day activities that a lot of us carry out. If you think an employee has been finding this sort of activity increasingly difficult, then it is likely that that they have passed the first part of the test.
A guidance document to accompany the EqA has been published by the Government, “Guidance on matters to be taken into account in determining questions relating to the definition of disability.” A link to this document can be found below and this is a useful tool in terms of putting the law in context. The appendix to the Guidance, with the catchy title of “An illustrative and non-exhaustive list of factors which, if they are experienced by a disabled person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities” sets out a list of potential activities which may be categorised as day to day activities and will help identify whether an impairment has crossed the line into the territory of disability.
It is also important to note at this stage that although day to day activities can encompass activities undertaken at work, specialist activities which are not undertaken by the majority would not be considered as “day to day activities” for the purposes of the EqA. An example given in the Guidance is “carrying out delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker. The Act only covers effects which go beyond the normal differences in skill or ability.”
Another very important factor to bear in mind is that analysis of whether an employee’s impairment has a substantial adverse effect on their ability to undertake day to day tasks must be considered as if the employee has not been in receipt of medical treatment. It may be the case that an employee has been prescribed anti-depressants, however, the effect of the medication must be discounted. This requirement can often make it even trickier to assess, even for experienced medical practitioners, whether an employee is potentially disabled and can make the whole process seem quite artificial. In our experience, Employment Tribunals are likely to give employees the benefit of the doubt when assessing whether they are disabled.
The EqA also provides that in order to qualify as a disability, an impairment must be long-lasting. This means that it must have lasted or be likely to last for 12 months or more. The nature of depression is such that it may recur and it may be the case that an individual suffers from depression for a few months and then their condition improves, perhaps aided by medication, only for the depression to return at a later stage. In these circumstances, would they be covered by the EqA?
The EqA states that if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur beyond a period of 12 months.
The 2010 Guidance provides the following example:-
“A young man has bipolar affective disorder, a recurring form of depression. The first episode occurred in months one and two of a 13-month period. The second episode took place in month 13. This man will satisfy the requirements of the definition in respect of the meaning of long-term, because the adverse effects have recurred beyond 12 months after the first occurrence and are therefore treated as having continued for the whole period (in this case, a period of 13 months).”
A further example provided in the 2010 Guidance is:-
“A woman has two discrete episodes of depression within a ten-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she suffers a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the 12-month period.”
It can therefore be a very difficult exercise to establish whether an employee suffering from depression qualifies as disabled. When dealing with these questions, employers should proceed with caution. It is best practice to seek medical advice as questions such as the impact on day to day activities, without the benefit of medication, and whether a condition is likely to recur are difficult questions to answer as a layman and in the event that matters come before an Employment Judge, an employer may be criticised if they have not sought expert medical advice on these often complicated cases.
The Guidance on matters to be taken into account in determining questions relating to the definition of disability can be found here.