Stress at work - managing long term sickness absence

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12 April, 2017

Herry v Dudley Metropolitan BC

The workplace has the potential to be a highly pressurised environment for everyone, particularly with the current austere climate within the Public Sector showing no signs of letting up and the uncertainty of Brexit looming in the wake of the triggering of Article 50 last month.

Registered Providers have recorded some of the highest figures of stress at work causing long term sickness, with some Organisations quoting such figures of in excess of 70% of their total sickness record.

Long term sickness often prompts hesitancy from employers, in comparison with other problems amongst staff with the principal reason for this being the inherent risk of a claim for Disability Discrimination. This is particularly prevalent with issues surrounding work related stress given the risk that it could amount to anxiety and/or depression and therefore a Disability under the Equality Act 2010.

A tricky situation for HR professionals often arises when an employee claims stress at work as a result of a decision that they do not necessarily agree with. Do you tread carefully amidst the risk it could amount to a Disability? Do you refrain from contacting the employee for fear that their condition could be exacerbated as a result?

Notwithstanding the above, which are valid points, it is necessary to treat each case on its own merits as this is what a Tribunal would do when presented with a Disability Discrimination claim.

The case of Herry v Dudley Metropolitan BC illustrates this point, that each case should be treated on its own merits, and with a clear business focus.

The Claimant, Mr Herry, claimed his work related stress amounted to a Disability within the meaning of the Act. He was signed off work for long periods which was supported by his GP. The Tribunal ruled that there was "little or no evidence that his stress had any effect on his ability to carry out his normal duties, other than to occasionally exacerbate his dyslexia"

Mr Herry appealed to the Employment Appeals Tribunal. He argued that the Tribunal had erred in failing to take into account that his stress meant he could not teach, which had an adverse effect on his normal day to day activities.

The EAT upheld the decision of the Tribunal. It sought to clarify a common issue for many employers regarding employees who may become entrenched in adverse circumstances at work, noting that this will very rarely amount to a mental impairment and therefore a disability under the Equality Act. A clear distinction must be made between a short term reaction to adverse circumstances in the workplace and a mental illness such as clinical depression. It also advised that care must be taken in the interpretation of medical evidence, so as not to conflate the two.

Whilst the case provides some reassurance and guidance for employers faced with such issues on a day to day basis, it remains to be seen whether, indeed, the ruling will indeed clarify a particularly complex, yet significant nuance which previous case law has seemingly failed to do. Employers should attempt to address such issues as they arise in a bid to prevent long term processes which could result in costly claims in addition to significantly depleted resources.

For more information contact Laura Cieplak in our Employment & HR department via email or phone on 01772 220188. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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