Back in 2017 we posted a piece about the difference between disability and unhappiness at work. In that case, Mr Herry had been off work for over a year but still failed to establish that he was disabled. In large part this was because his absence was felt not to be the result of an actual impairment, but instead of a particularly vigorous emotional reaction to something at work which would clear up as soon as he left.
So from that one might conclude that the easiest way of stopping work-related stress becoming a disability is to dismiss the employee early on in his illness. Then when the ET asks later whether the condition was likely to last 12 months, you could say with some confidence no, because you had thoughtfully spared the employee all that unhappiness by dismissing him.
Nice try, but a kind reader of this blog has pointed me to the EAT decision in Parnaby-v-Leicester City Council this summer which imposes some significant limitations on that principle.
Parnaby was absent with work-related stress from April to September 2016. Thereafter he returned to work and seemed generally restored and all agreed that by the end of that period it had been a one-off and was now fully behind him. However, he then went off with the same thing again from January 2017 until he was dismissed for incapability that July. He said the dismissal was disability discrimination. His stress was clearly an impairment (and so a step up from Herry’s emotional reaction) and equally clearly had a significant adverse effect on his daily activities, but was it also the final component of showing a statutory disability, i.e. long term?
Schedule 1 of the Equality Act defines “long term” as including where the impairment is “likely” either to last 12 months or to recur. “Likely” has been interpreted by the Supreme Court to mean “could well” rather than “probably will”, meaning that something which is unlikely to happen in probability or statistical terms can still be likely to happen legally. The ET said that Parnaby’s second absence hadn’t lasted 12 months and that because he had been dismissed and so isolated from the cause of his stress, like Herry, it wasn’t likely to do so either. Therefore he was not disabled.
The EAT was not persuaded that this was the right approach. First, it was not clear that the ET had properly considered how likely it was that the condition would recur. After all, it is well recognised that mental health conditions can come back in a way which physical illnesses do not and potentially with increased severity, especially where the individual is subjected to the same external pressures as caused the original complaint. This was already Parnaby’s second stress absence and so it could not be said that it wasn’t likely (in the judicial sense above) to recur. As to whether it was likely to last 12 months, the ET’s conclusion had been reached in the light of circumstances following Parnaby’s dismissal when his condition had indeed improved markedly. The EAT said that this was an assessment which should have been made as at the point the allegedly discriminatory act was decided upon. In Parnaby’s case, that included his dismissal. Therefore the Tribunal should have determined whether as at that time his condition was likely to last 12 months, but without taking the dismissal into account. That made the ET’s decision that Parnaby was not disabled unsafe and the EAT sent it back for another go at whether the Schedule 1 “likely” test was satisfied as at that point.
Lessons to Employers
- Herry is based on its own facts. It does not mean that the mental conditions associated with work-related stress cannot ever be statutory disabilities.
- When considering if he may be disabled, don’t take into account your employee’s impending merciful release at your hands from the conditions which are causing him his stress. He may then recover quickly and permanently, but he may not.