You may hear people say, "I'm stressed at work", but when does a normal level of expected workplace stress cross the threshold to becoming a disability?
In the UK Employment Tribunal (the "Tribunal") claim of Mrs D Phillips v Aneurin Bevan University Local Health Board, Mrs D Phillips ("Phillips") lodged claims asserting, amongst other matters, discrimination based on the protected characteristic of disability, relying on conditions of dermatitis and work-related stress as the alleged disabilities (together, the "Conditions").
In a preliminary hearing before addressing Phillips' claims, the Tribunal considered whether the Conditions constituted a disability for the purpose of the Equality Act, 2010 (the "Act"), which states that "A person has a disability if that person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities."
The Act defines substantial effect to be something more than minor or trivial, and long-term to mean the effect of an impairment having lasted or being likely to last for at least 12 months, or the rest of a person's life.
Whilst the Tribunal found that dermatitis constituted a physical impairment with some effect on Phillips' day-to-day living, Phillips' claim of disability fell short when considering whether those effects could be regarded as having substantial adverse effects on her day-to-day ability. In answering this question, the Tribunal considered the Guidance of Disability issued by the Secretary of State in 2011 which, in a nutshell, says that regard should be given to the extent to which a claimant can reasonably be expected to make adjustments to reduce or remove the effect of the impairment. In this instance, the Tribunal considered that the use of gloves to reduce or remove the effect of her dermatitis was a simple and non-onerous adjustment that the claimant had adopted in the past and which proved successful in removing the effects of her dermatitis. On this basis, Phillips had not established that dermatitis had a substantial effect on her day-to-day ability, and her condition of dermatitis did not constitute a disability for the purposes of the Act.
Turning to the second condition of work-related stress, placing reliance on the Tribunal case of J v DLA Piper UK LLP, the employer argued that a distinction needs to be drawn between diagnosed mental health conditions and mere reactions to adverse life-events, alleging that Phillips suffered from the latter and therefore, did not have a disability for the purposes of the Act.
The Tribunal found that Phillips' medical reports had clear indications that she suffered from work-related stress at the relevant times and was in fact certified unfit for work on this basis on several occasions.
Considering the guidance set out in J v DLA Piper UK LLP to address disputes about the existence of an impairment, the Tribunal started off by considering whether the work-related stress adversely affected Phillips' day-to-day abilities on a long-term basis. The Tribunal accepted Phillips' evidence that the work-related stress had left her unable to leave her home at times, unable to socialise with others and affected her ability to sleep and concentrate, all of which the Tribunal considered to be adverse and substantial. The employer sought to argue that her medical reports referred to periods where the symptoms of her work-related stress were noted as being less substantial, presumably to argue that Phillips did not meet the long-term requirement of the definition of the disability in the Act. The Tribunal disagreed and found that even during periods where the symptoms of Phillips' work-related stress were recorded as being controlled, they were still regarded as sufficiently significant that she was certified unfit to work, and further, because Phillips had suffered with substantial adverse effects as a result of her work-related stress from 2021 onwards, she met the long-term element of the definition of disability.
One of the key findings, and the more controversial takeaway from this case, is the Tribunal's finding that there is "…no requirement for there to be a formal diagnosis of a mental illness in order for the Tribunal to be satisfied that there is a mental impairment causing a substantial adverse effect on a Claimant's ability to do day to day activities."
You will all by now be very alive to Guernsey's new discrimination law, the Prevention of Discrimination (Guernsey) Ordinance, 2022 (the "Ordinance"). Under the Ordinance, a person is regarded as having a disability where they have one or more long-term physical, mental, intellectual, or sensory impairments; which have lasted or are expected to last for six months or more. With a shorter timeframe and no requirement for a condition to have substantial adverse effects on day-to-day activity in order to meet the definition of a disability, claims of disability in Guernsey are undoubtedly less onerous for a claimant to establish in Guernsey than in the UK.
Whilst this case is not binding in Guernsey, it is likely to have strong persuasive value in determining claims of disability discrimination. However, it should not be taken for granted that claims to disability on the basis of work-related stress are now just up for the taking. The findings in this case were largely substantiated by medical reports evidencing the condition and its effects over a protracted period (including periods where the condition was seemingly controlled and less burdensome on Phillips). Additionally, as this was a preliminary hearing, it remains to be seen whether the employer will be found to have committed an act(s) of unlawful discrimination on the basis of the disability.
It's safe to say that there is a blurry line between symptoms of stress which have the potential to meet the definition of disability under the Ordinance and mere reactions to adverse life events. Whilst a certain level of stress can be expected in most workplaces, employers will do well to ensure that employee mental health is at the forefront of workplace health and safety considerations. Not only is this the right thing to do, but it also safeguards against claims of disability discrimination if an employer is able to evidence that they provided the employee with robust support and, where required, made reasonable adjustments to assist the employee in overcoming any substantial disadvantage experience in the workplace because of their disability.
Ultimately, determining the existence of a disability stemming from mental health conditions and the appropriate management of an employee with a mental health condition requires a flexible case by case approach and employers are encouraged to obtain legal advice to ensure that they do right by both their employees and themselves.
If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.
Employment Guide
Location: Guernsey
Related Service: Employment Law
