In recent years, the issue of stress in the workplace has become something of a hot topic, and it’s one that we have covered on several previous occasions. It has been accepted as a disability in several cases, as long as it has fitted the criteria laid down for a disability by the Equality Act 2010, which requires that the physical or mental impairment has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to perform normal daily activities. By ‘substantial’ is meant something more than minor or trivial and ‘long-term’ is taken to mean 12 months or more.
However, what can be done when the perception of stress in the mind of the person suffering from it differs from the accepted legal definition? A recent case, Herry v Dudley Metropolitan Council  has given both Employment Tribunals and employers some much-needed guidance on where to draw the line.
Mr Herry was a teacher and part-time youth worker. He had received a diagnosis of dyslexia when he went to university to study architecture. After graduating, he gained a teaching qualification and obtained a job as a teacher of design and technology from January 2008.
Whilst in this post, he made no mention of dyslexia; nor did he ask for any adjustments to be made because of it.
However, about two years after starting his teaching position, he started to put in a great number of sickness certificates and he was on sick leave from June 2011.
The sickness certificates relating to the period covered by his claim made reference to ‘work-related stress’ and ‘stress’. There was no mention made of depression.
There was, as the Employment Appeal Tribunal said, a “dearth of information” in the medical documents about the work-related stress and this lack was one of the contributory factors in Herry’s failure to show that his condition met the definition of disability as laid down in the Equality Act 2010.
Although Herry brought his dyslexia to the attention of the tribunal (and because of this, adjustments were made to the tribunal procedure), it was found nevertheless that he was an intelligent man, able to analyse documents and instructions and fully comprehend them, as long as he was given a little time to do so.
The tribunal noted the difference between stress that was brought on by problems in daily life, including difficulties at work, and clinical depression and anxiety.
The former was unlikely to fit the definition of a disability unless there were other influencing factors, whilst the latter was far more likely to be a disability.
Based on these considerations, the tribunal decided that Herry was not disabled during the period covered by his complaint. He had failed to provide evidence to show that his dyslexia had a substantial adverse effect on his ability to carry out normal activities. In fact, the evidence available showed that his stress had arisen as “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.”
Understandably, Herry appealed against this judgment. His grounds were four in number:
Firstly, he said that the adjustments the tribunal had made during the hearing were inconsistent with the finding that he was not disabled. This was rejected on the grounds that attending a tribunal was not a day-to-day activity that related to his normal work as a design and technology teacher.
Secondly, he claimed that the tribunal had made a mistake in the way that it determined whether his condition affected him substantially and adversely and which activities were affected by his condition. This was rejected and the Employment Appeal Tribunal said the Tribunal had given the correct definition of ‘substantial’ and its decision had not been based on a narrow or inappropriate definition of normal day-to-day activities.
Thirdly, he said that the tribunal had incorrectly focussed on what he could do, rather than what he could not do. The Employment Appeal Tribunal disagreed, saying that the correct approach had been taken.
Finally, Herry said that the tribunal had not taken into account his absences from work and the information given on the sickness certificates.
The Employment Appeal Tribunal said that the Employment Tribunal had followed existing case law to determine if Herry’s stress counted as a mental impairment, which could be counted as a disability, or a reaction to events in his life, which would not qualify. He had not shown that he had a mental impairment, nor had he demonstrated that it had a substantial, long-term effect.
What should employers do?
It’s important that the employer gets to the heart of the employee’s stress problem. A direct line of questioning regarding how the employee’s work life has led to their absence and the desired remedy would be the best approach to take.
The employer then has a choice of actions:
They can force the absent employee into a formal grievance procedure, on the grounds that getting the matter dealt with and out of the way is a good means of initiating the recovery process from stress. However, this can be counter-productive as it may provoke an attitude of confrontation in the employee and make them less likely to want to return to work.
The second action, and the one which may bear more fruit in the long run, is to propose a mediation process between the employee and the person with whom they have their grievance.
Regardless of whether this works or not, the result may be a win for the employer. Consider the possible outcomes:
Through the mediation process, the employee may come to the realisation that their position is based on a misunderstanding of what happened or why. The blockage preventing their return to work will be removed. Similarly, as a result of the mediation, the employer may learn more about the employee’s triggers and flashpoints and by avoiding them, develop a more harmonious relationship.
If the mediation fails, this may cement in the mind of the employee the view that they were right to remain off work; the employer may also reach the conclusion that the relationship has irretrievably broken down and start work on bringing it to its conclusion. In such a case, the fact that the employer had proposed mediation in the first place will stand them in good stead if they need to show that they have done everything reasonably practicable to resolve the employee’s grievances.
It may be that the employee is sufficiently angry and stressed that they will not meet with their employer, even in the environment of mediation. Such a refusal could be counted as a failure to comply with a reasonable management instruction.
It’s rare that an employer/employee relationship, which has deteriorated so far that the employee has stayed off work with stress, resolves itself without external input. If an employee has been absent for more than six weeks, the chances are greatly reduced that they will return. It therefore makes good sense to offer this mediation option at the earliest opportunity.