If stress isn’t a diagnosable condition, can it be identified as a disability?
In an article first published in HR magazine David Browne, an employment law partner at Shakespeare Martineau, outlines the legal perspective on when mental health conditions should be considered disabilities.
In the eyes of the law some conditions are clearly outlined as a disability and some are not. Under the Equality Act 2010 if a physical or mental condition causes ‘substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities’ it is considered a disability. But while cancer, HIV and MS, are all automatically considered disabilities under the Act, other conditions such as stress, anxiety and depression will only be deemed disabilities if they substantially and adversely affect the performance of everyday activities. Such conditions will therefore need to be assessed on a case-by-case basis.
Knowing whether to treat an employee who is suffering from stress, anxiety or depression as disabled can be difficult. It is usually defined by the length of time an individual has been absent from work or is likely to be absent from work. For example, an employee who has had no history of stress prior to taking a few weeks’ sick leave would not likely be considered disabled in the first instance. If an employee has been off work for a substantial and/or ongoing amount of time, however, this person is more likely to be classed as disabled and therefore protected from disability discrimination under the Act.
Recognising the signs of stress, anxiety or depression in the workplace is something employers should be proactive on. Employers are advised to educate managers about the importance of knowing their staff collectively and individually so they can monitor any changes in their working patterns or behaviours. Is someone taking absence more regularly, for example, or avoiding completing certain tasks; or do they seem quieter and more introverted than usual? Identifying anything typically out of the norm and taking action early to speak with that individual will make stress, depression or anxiety far easier to understand and manage in the workplace from the outset.
While promoting positive wellbeing and ensuring that the working environment doesn’t contribute to or aggravate stress or anxiety should be a top consideration for employers, it is likely employers will come across people suffering with mental health issues within their organisation at some point.
According to the Mental Health Foundation two in three adults suffer with mental health problems in their lifetime. It is therefore important for employers to heed medical advice and, if they suspect someone is suffering from a mental health issue, to refer that individual to occupational health to identify, as best they can, whether or not he/she is classed as disabled under the Act. This is to not only ensure that the employer complies with its legal obligations, but also to better understand what steps it can take to ensure that the employment relationship remains positive and productive.
Failing to identify or take action when employees are suffering from stress, anxiety and depression can leave employers open to discrimination claims. To avoid this they should look to make reasonable working adjustments in instances where stress and depression are an issue, and certainly when formal diagnosis has been given. While it might depend on operational viability or affordability as to whether or not an adjustment is reasonable, it could simply mean removing an element of the job found to be too stressful for that individual or a change to his/her working times. Working collaboratively will help to curtail the possibility of related grievances and make discriminatory claims less likely.
Furthermore, having a working culture in place whereby employees are aware of the organisation’s values and ethos towards equality and diversity will help protect an employer from liability. Outlining what constitutes respectful and decent behaviour within a policy document that is read and signed by everyone will help mitigate any organisational wrongdoing and ensure that everyone is treated fairly and with dignity.
Having an active and thorough approach to tackling stress in the workplace is essential for any employer. The stigma that is often associated with mental health and the difficulty in defining conditions such as stress and depression can make it extremely hard for employers to spot and to manage. Taking the time to acknowledge potential warning signs and reacting quickly and considerately to those who are suffering, however, will remove the likelihood of employment tribunal claims and the financial and reputational implications they bring.
David Browne is an employment law partner at Shakespeare Martineau.
You can view the HR Magazine article in full here.