Stress and the city: Solicitors, stress, and your health
Judi Rhule examines the effects of stress on the legal profession
What is stress?
According to the Health and Safety Executive (HSE), stress is the adverse reaction people have to excessive pressures or other types of demand placed on them.
Some stress can be positive and can generate the feeling of excitement and can create an adrenaline rush. However, acute, or chronic stress can take a heavy toll on mood and mental wellbeing and can feel inescapable.
Stress is not a diagnosed illness. However, where pressures are excessive, sustained, or intense, this can lead to long-term mental and physical ill health.
Stress can cause other conditions which are medically recognised (both physical and mental), such as high blood pressure and depression.
The cost of stress
Work-related stress is a major contributor to sickness absence in the workplace. The HSE estimates it costs Britain over £5 billion a year in replacement staff, lost production, sickness absence and increased accidents. The HSE estimate that over 17.9m working days were lost due to work related stress, depression, or anxiety in 2019/2020. The number of workers suffering from work related stress depression or anxiety (new or long-standing) in 2019/2020 was around 828,000.
Is stress a disability?
Can stress fall within the definition of disability under the Equality Act 2010 (EqA), even though it is not a diagnosed illness? The EqA (section 6(1) defines disability as follows:
“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
The Disability Discrimination Act 1995 (DDA) originally included the requirement for a mental impairment (or mental illness) to be clinically well recognised. The guidance stated that a clinically well recognised illness was very likely to include those illnesses which were specifically mentioned in publications such as the WHO’s International Classification of Diseases.
In Morgan v Staffordshire University 2002 IRLR 190 (EAT) it became established law that phrases such as ‘stress’, ‘anxiety’, ‘depression’ and ‘nervous debility’ did not entitle an employee to bring a claim under the DDA.
The Disability Discrimination Act 2005 amended the DDA and removed the requirement for an impairment that consisted of a mental illness to be clinically well-recognised.
This means that employees with a ‘mental impairment’ now only need to show that the ‘impairment’ has a long-term adverse effect on their ability to carry out normal day-to-day activities.
Normal day to day activities include shopping, having a conversation, using the telephone, watching television and the ability to concentrate. Some work-related activities are also considered normal day to day activities, such as interacting with colleagues, following instructions, preparing written documents, and keeping to a shift pattern. All these activities could be affected by stress. When assessing an impairment’s effect on a person’s ability to carry out normal day-to-day activities, an employment tribunal should not compare what that person can do with the average person, but rather, what the person can do compared with what he or she could do without the ‘impairment.’
Stress is often described as a symptom of circumstances, and not a disability. However, it may result in, or be a trigger for, other underlying illnesses (e.g. depression), which may fall within the statutory definition of ‘impairments.’
The Equality Act (EqA) guidance states that ‘impairment’ should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. Whether a person is disabled is defined by reference to the effect that an impairment has on that person’s ability to carry out day to day activities (including work).
Interestingly, stress is not excluded from the definition of disability under the EqA in the same way as dependency on alcohol and nicotine, or tendency to steal or set fires.
What is the situation today?
Most case law suggests that stress at work will not be a disability for the purposes of the EqA.
In J v DLA Piper UK LLP [2020] IRLR 936, the Employment Appeal Tribunal [EAT] gave guidance for tribunals on the difference between stress caused by adverse life events, including difficulties at work, and clinical depression and anxiety. While the latter is likely to be an impairment, the former without more will not. In such cases, the tribunal will need to start by considering the extent to which the condition has an adverse effect on the employee's ability to carry out day-to-day activities. The EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression.
In Herry v Dudley Metropolitan Council UKEAT/0101/16 and Herry v Dudley Metropolitan Council and the governing Body of Hillcrest School UKEAT/0101/16, the EAT expanded on the distinction drawn in J v DLA Piper.
Where an employee’s work situation causes their stress, it made the following observations:
- There is a class of case where the individual 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.
- A doctor may be more likely to refer to the presentation of such an entrenched position as ‘stress’ than as anxiety or depression.
- An employment tribunal is not bound to find that there is a mental impairment for the purposes of disability in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise, are not of themselves mental impairments: they may simply reflect a person’s character or personality.
- Any medical evidence put before the tribunal that supports a diagnosis of a mental impairment must be considered with great care, as must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.
In the case of Igweike v TSB Bank Plc UKEAT/0119/19/BA the employee was a Customer Service Consultant at TSB Bank. Sadly, his father passed away on 6 June 2016. His grief affected his ability to carry out normal day-to-day activities “in relation to work and social life.” This meant he was unable to meet his work target for 2016. The effects of the bereavement included fatigue, confusion and anxiety, a loss of concentration at work and a heavier consumption of alcohol.
In January 2017, after a performance review, his employer told him that he would not receive a bonus payment for 2016. In April 2017, the employee’s GP diagnosed him with depression. The employee complained that the failure to award him a bonus, amounted to disability discrimination on the basis that his grief reaction was a disability. The employment tribunal considered whether he had a disability under the EqA. When considering whether there was an impairment, the tribunal noted that the employee’s reaction was a typical reaction to the death of a close relative and that the medical evidence supporting a depression diagnosis was recorded later than the time of the alleged discrimination. It found there was no impairment. The tribunal also considered whether there had been substantial impact on the employee’s ability to carry out normal day-to-day activities, and found there was not, on the basis that his lack of concentration had not prevented him from carrying out his duties but had affected the quality of his performance at work. He had not described any effects outside work of his fatigue or lack of concentration. The tribunal found that any impact had not gone further than normal differences in ability. The tribunal also found that the employee’s impairment was not long term, as there was no evidence as to whether the employee’s depression had lasted a year or more.
Therefore, the tribunal could not conclude that at the material time, whether the symptoms suffered by the Claimant were caused by an impairment or simply as an adverse reaction to the employee’s loss.
The employee appealed the tribunal's decision. The EAT upheld the findings of the ET – it had properly considered that a natural reaction to adverse life events does not necessarily constitute an impairment.
In a recent employment tribunal case of Webb v DWR Cymru Welsh Water [2021] ET 1602009/2020 Mr Webb (“the employee”) brought a claim for disability discrimination; he suffers from stress, depression, and anxiety. A preliminary hearing in July 2021 was held to determine whether the employee was disabled for the purposes of the EqA. The employee produced a disability impact statement for the tribunal which addressed two issues: concentration and confidence.
Regarding concentration, the employee said that in July 2020 he was riding his bike along the side of a canal and clipped an overhead bridge and fell into the canal. This was a route he had ridden many times without incident. He believes the incident happened through lack of concentration.
Turning to confidence issues, the employee did not take care of his personal hygiene. His wife had to frequently remind him to shower, clean his teeth and change his clothes. He did not feel confident answering the telephone or answering the door unless it was pre-arranged. He would also become overwhelmed when shopping in the supermarket.
On 27 February 2020 the employee was prescribed mirtazapine. His GP recorded the employee’s condition as “stress at work”.
From the GP notes (of which there were several spanning over the period of July 2020 to February 2021), the Employment Judge concluded that the employee was not simply suffering from stress but also depression.
The tribunal found that the employee’s stress/depression and anxiety had a substantial adverse effect on his day-to-day life and that the impairment could well continue to have those effects (disregarding medication) for 12 months. The tribunal also found that his problems had stemmed from the workplace as the employee had no previous history of mental health problems before matters deteriorated with his line manager and senior management.
In the circumstances, the tribunal found that the employee was disabled for the purposes of the EqA and that his disability was stress, depression, and anxiety.
What should the employer do?
If the stress related illness is caused by work, there may be a duty to make reasonable adjustments. If it is caused by external factors, such as family related stress there still may be a need to make some adjustments to enable the person to work, the employer should avoid exacerbating the stress.
Early, sympathetic intervention by employers together with a supportive environment will decrease the likelihood of the stress related condition lasting more than 12 months. Therefore, if managed properly the stress related condition could fall outside of the statutory definition of disability.
Where an employee’s stress begins to affect their performance at work, employers should:
- obtain medical advice and follow the recommendations
- carry out risk assessments
- when an employee returns from sickness absence, carry out return to work meetings
- make and keep contemporaneous notes or minutes of all communications with the employee
- if appropriate follow the performance management procedures and consider reasonable adjustments to the procedure
- consider alternative roles / change of manager as a reasonable adjustment.
The causes of stress and the way people react to it is different in each case, no one size fits all.
It is unwise for an employer to dismiss the condition as stress, as it could be a disability and could give rise to a claim for disability discrimination and/or personal injury.
Judi Rhule is a Senior Associate with Springhouse Solicitors: springhouselaw.com
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