Fans of the unnecessary medicalisation of management issues in the workplace will be sadly disappointed by a new Employment Appeal Tribunal decision at the end of December. For everyone else, Herry – v – Dudley MBC represents a very sensible and timely reminder of where the line lies between being disabled on the one hand and just really miserable at work on the other.

Mr Herry’s day in the EAT was mixed. It sent back for reconsideration a costs order made against him by the Birmingham Employment Tribunal because he had clearly acted unreasonably in pursuing over 39 days in Tribunal more than 90 separate allegations covering over 4 years in the face of advice from multiple sources that they were all baseless, as indeed it proved.  However, even though the size of the award was such that his then disposable income would have allowed the debt to be discharged in just 415 years (without interest), possibly reducing to under a century if he were lucky enough to secure a new job, that was felt to be rather on the high side.

On the other hand, the EAT rejected Herry’s claim that his work-related stress constituted a statutory disability, even though by the relevant time he had been off work with it for over a year.

The EAT took a hard look at what actually was keeping Herry off work. It was careful to recognise that work-related issues can result in real mental impairments, but did not consider that to be the case here – almost all the evidence pointed to Herry in fact being reasonably well, and technically fit for work, but simply having painted himself into a mental corner through the vigour of his reaction to adverse events at work.  He was in other words suffering from an “adjustment disorder”, also known as “situational depression”.  Key to this complaint for our purposes is that it is caused by factors external to the employee and almost always resolves itself within a few months of those factors being addressed.

Bringing a wan smile to employers everywhere, the EAT Judge said “experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned 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 … an Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances or a refusal to compromise (if these or similar findings are made by an Employment Tribunal), are not of themselves mental impairments: they may simply reflect a person’s character or personality“.  Unimprovable, it seems to me.

Lessons for employers

Getting to the root of the employee’s claimed stress issue quickly is essential. The employer needs to ask up front specifically what about the way he has been treated at work has led to his absence and what specifically he would consider to be his desired remedy.  Both of these are necessary components for the proper consideration of the employee’s issues, whether or not via the formal grievance procedure.  Then you have a choice:

You can then push the absent employee into that procedure if you wish, hopefully safe in the knowledge that his doctor will usually agree that the fastest route to recovery for the patient is to have the argument and get it behind him as soon as possible. But a formal grievance procedure is like an artillery duel – each party’s position gets more entrenched and his animosity for the other grows as quickly as his willingness to leave his foxhole shrinks.  Trying to bring an alienated employee back to work by shelling him with HR letters will be an uphill struggle.

One better way forward in such a case is to propose a mediation or facilitation between the employee and the person he blames for his absence. This may or may not work but a mediation does not have to succeed to assist the employer:

  1. The employee may be persuaded that his understanding of what happened or why was misplaced, removing his mental blockage about a return to work. The manager may equally learn to avoid the employee’s own psychological triggers so that a new and more mutually respectful relationship can be created.
  2. Alternatively, the mediation may fail. That failure may reinforce the employee’s views of the rightness of his decision to stay away from work, but equally it allows the employer to move a major step closer to a reasonable conclusion that things have become irretrievable, and hence that the employee has to go.
  3. Or the employee may have worked himself into such a lather about the manager that he will not meet with him at all, even in the safe space of a mediation. Bearing in mind that the fastest way to address this sort of medical complaint is to deal with the external stressor, such a refusal could constitute a failure to comply with a reasonable management instruction. It could also be seen as akin to any incapability case where the employee consistently fails to comply with doctor’s orders and so prevents or delays his own recovery.

Relationships which the employee believes so broken as to justify his removing himself from work with “stress” almost never mend themselves unaided. Statistics show a sharply reduced chance of a successful return after absence of 6 weeks or more. It therefore makes good sense to offer this mediation option at the earliest opportunity. If it works, fab, but even if it does not then the employer’s hand in any decision to dismiss in a case like Herry is greatly strengthened, whether or not the employee’s absence is found to be by reason of a disability.