It could be fair to say that most employers are getting comfortable with understanding how to manage and fairly treat physically disabled employees, providing reasonable adjustments and allowing them to continue their work on a level playing field. The caveat to this is that mental health is still a grey area for many employers due to the inability to look at someone and instantly tell whether or not they have a disability.
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.
According to the 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 there is an interesting case to consider: Herry v Dudley Metropolitan Council, which was finalised at the end of 2016.
Some facts about the case are as follows:
- Claimant 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 was not 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; in particular mood and anxiety disorders.
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, you’re busy at work or you’ve fallen out with your family as two simple examples. When you take away this cause 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.
REMEMBER: 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 although care should be taken when dealing with employees who are signed off with stress (or refer to workplace stress on their sick notes) it isn’t always the sticking point within a disciplinary procedure that people believe it to be.
- 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.
KEY POINT: If it is found that an employee faced direct discrimination in the workplace under any of the 9 protected characteristics, disability being one of these, then there is no cap on the settlement that can be awarded.
- Historically result in the highest awards with the average for 2015/2016 being £21, 729.
- Often come with a higher ‘injury to feelings’ cost, as well as the loss of earnings being significantly higher; someone deemed disabled is more disadvantaged when it comes to finding their next employment.
With mental health awareness improving and the stigma attached hopefully continuing to decline, there will almost certainly be more case law to come in this area, so watch this space.
If you have any concerns that your policies and procedures do not reflect current best practice, or for any other employment advice, please contact our HR Consultancy Team on 01302 341 344.
By Kris Kerins Cert CII – Risk Services Adviser