In a world where everyone seems under pressure and managing a business is an increasingly complex and demanding role, complaints from employees that they feel ‘stressed’ are often met with a degree of incredulity. Although it is clear from the HSE that employers must act reasonably to reduce stress at work, it is sadly the case that many employers feel that ‘stress’ is claimed unfairly in disputes at work.
Not all reactions in this regard are right. However, the recent case of Herry v Dudley Metropolitan Council (EAT) is an example of where it was found an employee was not suffering from stress as a protected “disability”, but instead what might be considered a lower level of stress caused by adverse life effects which did not give him the protection he was seeking in employment law. Therefore it is a helpful case for employers.
Mr Herry was employed as a teacher of design and technology and a part-time youth worker. In 2012, he brought employment tribunal proceedings against Dudley Metropolitan Council and the Governing Body of Hillcrest School. The proceedings were wide-ranging, covering 90 allegations relating to a four-year period. The hearing lasted for 39 days. All claims were dismissed. At a costs hearing in 2015, Mr Herry was ordered to pay costs to the Respondents of £110,111 as he had gone ahead despite costs warnings from the Respondent and advice from his union and 2 separate law centres that he had no reasonable prospects of success.
In 2014, Mr Herry also brought further proceedings against the Council alleging disability discrimination due to dyslexia, stress and depression. The Tribunal held that Mr Herry was not a disabled person at the material time. He had not shown that his dyslexia had a substantial adverse effect on his ability to carry out day-to-day activities. Further, he had provided little or no evidence that his stress had any effect on his ability to carry out normal activities, other than to exacerbate his dyslexia occasionally. The tribunal found that from the evidence, it appeared that Mr Herry’s 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”.
Mr Herry appealed both the costs order and the disability finding.
The EAT held that the costs order was too steep as there was no evidence that even if Mr Herry returned to teaching, he could pay off an amount this large. This was remitted back to Tribunal to reconsider.
The EAT upheld the disability decision, even though the stress was found to be long term. The Judge commented:
- There is a class of case where the individual will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities.
- A doctor may be more likely to refer to the presentation of such an entrenched position as “stress” than as anxiety or depression.
- An employment tribunal is not bound to find that there is a disability in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise, are not of themselves mental impairments: they may simply reflect a person’s character or personality.
- Any medical evidence put before the tribunal that supports a diagnosis of a mental impairment for stress must be considered with great care, as must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.
So how is this of application to employers?
If you have an employee saying that they are stressed due to events at work, remember that this could be considered to be a disability if it is long term and sufficiently impacting on their lives. However, remember that the onus is on the employee to prove this and a simple certification from a GP of ‘stress’ is not likely to be enough.
You should always seek a medical report if it is suggested that the ‘stress’ is significant. However if the report indicates that the stress simply arises from the situation, rather than amounting to a medical impairment, it is likely that no disability will be found.
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