Employment Law Case Update - December 2014
Burnetts' Employment law solicitors explain why depression is not always a disability.
We are always telling the employers that we work with to be cautious whenever a Sick/Fit Note or some other medical evidence is submitted suggesting that an employee is suffering from stress and depression. That is because stress and depression is a mental impairment and so potentially a condition which is protected as a disability under the Equality Act 2010.
However, the case of Saad v University Hospital Southampton is a good reminder that having a mental impairment is not enough to qualify for protection under the Equality Act 2010 (“the Act”). To be classed as disabled under that Act, the condition in question must also have a substantial and long term impact on the employee’s day to day activities.
Mr Saad was a Specialist Registrar in cardiothoracic surgery at University Hospital Southampton. He was employed under a series of fixed term contracts, the last of which expired on 20 September 2012. The contract was not renewed.
Mr Saad argued that he was disabled and that he had been discriminated against. He had originally been signed off work with insomnia but he then developed an anxiety disorder as part of which he changed his phone numbers so that he could no longer be contacted by work colleagues. Mr Saad’s evidence at the employment tribunal was that his work related anxiety became so great that he couldn’t even leave the house for fear of bumping into work colleagues. However, there was also evidence that he took a number of trips abroad and that he was involved in running and other outdoor activities as a stress reliever during the relevant period.
On the basis of that evidence, the Tribunal accepted that Mr Saad suffered from a depressive disorder. However, the Tribunal considered that the impairment did not have a substantial adverse effect on Mr Saad’s ability to carry out normal day-to-day activities and, therefore, that he was not disabled as defined in the Act.
Mr Saad appealed but the Employment Appeal Tribunal (the EAT) has now rejected that appeal. The EAT felt that the Tribunal had applied the tests correctly including considering the effects of the impairment on the work environment i.e. that the fact that Mr Saad had reduced ability to communicate with colleagues and to concentrate had been taken into account but that the Tribunal had been right to balance that against the other evidence presented to it. The EAT felt that the Tribunal had been entitled to conclude, on the evidence before it, that the impairment did not have a substantial adverse effect on Mr Saad’s normal day-to-day activities.
This case builds on a number of other decisions this year. Firstly, it reinforces that, although medical evidence is important, it is the employer/the Tribunal who has to decide whether the impacts of the employee’s condition are serious enough that the condition will amount to a disability. Secondly, the case is a good reminder that having a recognised condition is not enough in and of itself to offer protection under the Act. All of the requisite elements (including substantial, long term effect on day to day activities) need to be present. This means that, although employers still need to act with caution when a depressive disorder is disclosed, employers can take steps to establish exactly what the effects of that condition are before deciding how to proceed.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Monday 15th December 2014