In Herry v Dudley Metropolitan Council and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School the Employment Appeal Tribunal (EAT) gave useful guidance on when stress due to difficulties at work may amount to a disability.
Mr Herry was employed as a teacher 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 extensive, covering 90 allegations over a 4 year period. All his claims were dismissed. Mr Herry then brought further proceedings in 2014 alleging disability discrimination. He claimed that his disabilities were stress, depression and dyslexia.
Mr Herry had been diagnosed as suffering from dyslexia in 1996. He was employed as a teacher from January 2008. Whilst he was teaching at the Respondent’s school he did not mention dyslexia to his colleagues or ask for adjustments to be made.
From May 2010 onwards he submitted many sickness certificates and had been continuously away on sick leave from June 2011. His sickness certificates fell into two main periods. From May 2010 until April 2013 the certificates usually referred to a physical injury, but from October 2013 onwards, they had descriptions of “stress at work”, “work related stress”, “stress”, or “stress and anxiety”. No certificate referred to depression. There was a reference to depression in a GP’s letter dated 25 November 2014, but this was as a result of the employment tribunal proceedings.
The tribunal subsequently held that Mr Herry was not a disabled person at the material time and 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 also provided little or no evidence that his stress had any effect on his ability to carry out normal activities, other than to occasionally exacerbate his dyslexia. Mr Herry then appealed to the EAT.
The EAT dismissed the appeal and agreed that the Claimant had failed to establish that he had a disability for the linked reasons that he did not establish a mental impairment and he did not establish the requisite substantial long-term adverse effect. An occupational health report produced also noted that Mr Herry took no medication to manage his stress and he was physically and mentally fit and able to work.
The EAT saw no error of law in the employment tribunal’s reasoning and subsequently upheld the decision that the employee was not disabled within the meaning of the Equality Act 2010. They concluded that the employee’s stress had been a reaction to difficulties at work rather than a mental impairment, and he had failed to establish that his condition had a substantial adverse effect on his day-to-day activities.
The EAT held that the employment tribunal had correctly followed J v DLA Piper UK LLP when determining whether Mr Herry’s stress amounted to an impairment. It was stated that his stress was a reaction to life events and reference was made to the distinction between mental impairment (which could be a disability) and a reaction to life events (which would not constitute a disability).
Mr Herry was unable to provide adequate medical evidence to support his assertions as he chose to rely solely on the terms used by his GP in his sick notes. Terms such as ‘depression’ and ‘stress’ can be used loosely and such labels alone cannot consequently be relied upon by an employee to establish that they are suffering from a disability under the Equality Act 2010.