Over the past few years, discussion and promotion of the importance of mental health have increased significantly. There are many reasons why mental health issues arise and there are varying degrees of mental ill health. In some circumstances, a mental impairment will be classed as a disability under the Equality Act.
When does mental ill health become a disability?
A mental health condition will meet the legal definition of a disability under the Equality Act if it has a substantial adverse effect on an individual’s ability to carry out normal day to day activities, (such as getting dressed, preparing and eating food, carrying out household tasks, walking etc.) and the effect lasts (or is likely to last) for at least 12 months.
This article looks at three recent Employment Tribunal cases on mental ill health and whether, in the specific circumstances, the condition amounts to a disability and what action an employer should take.
A state of anxiety may constitute a disability
In this first case, Miss Okeke V Blenheim CDP (Blenheim), Miss Okeke was employed as an offender recovery worker and then a court worker. In 2016, having suffered some recent bereavements, she visited her GP reporting that she was suffering from a low mood, tearfulness and a poor sleep pattern. She was prescribed medication and referred for counselling. On a number of occasions in the following years, she made her employer aware that she was suffering from stress and/or anxiety and was off sick for various periods. She also provided evidence of the impact of her disruptive sleep pattern by way of GP notes and confirmation of prescribed medication. Her doctor had also suggested a later start time would be beneficial. In a back to work meeting in December 2017, Miss Okeke was told by the HR manager that, in relation to her anxiety, she did not have a disorder but rather a condition. After this meeting, the area manager wrote to her stating that it had been ‘explained’ that anxiety is not considered a disability and therefore Blenheim had no duty to make reasonable adjustments. She resigned in June 2018.
At the time Blenheim made a decision about Miss Okeke’s mental health, it had not considered the medical evidence provided by her, nor had it sought its own advice from an occupational health adviser. At the time of the Employment Tribunal hearing, Blenheim had conceded that Miss Okeke’s anxiety state did constitute a disability. Given her disability and the medical advice, the Employment Tribunal held that it would have been reasonable for Blenheim to make a reasonable adjustment to Miss Okeke’s start time.
Paranoid delusions did not establish disability
In the second case, Mr Sullivan v Bury Street Capital Ltd, from the start of Mr Sullivan’s employment in 2009, there was a degree of tension between him and the chief executive due to his relaxed attitude to matters such as timekeeping, attendance and documenting his activities.
In May 2013, following a short relationship with a Ukrainian woman, Mr Sullivan became convinced that he was being monitored and followed by a gang of Russians connected to the woman. The chief executive became aware of this belief in around July 2013 noting that he was ‘in a bad place psychologically and physically’, that he was shaking and sweating and that his state of mind was one of ‘extreme paranoia’.
However, by September 2013 the chief executive noted that Mr Sullivan looked well and his performance had improved. Mr Sullivan also informed him at this time that his condition was improving. In early 2014, Mr Sullivan saw a doctor and a psychologist both of whom noted improvements in his presentation and working relationships.
Between July 2014 and September 2017, the chief executive conducted regular reviews with Mr Sullivan in which his timekeeping and attitude at work were a constant issue. By August 2017, Mr Sullivan’s behaviour and timekeeping had become a tipping point and he was dismissed on 8 September. Mr Sullivan brought claims of disability discrimination, among other claims.
The Employment Tribunal found that Mr Suillivan’s condition did not qualify as a disability. It found that the paranoid delusions that began in May 2013 did not last beyond September 2013. Although Mr Sullivan maintained his delusional belief of the existence of the Russian gang beyond this point, it no longer had a substantial effect on his ability to carry out normal day to day activities. The Employment Tribunal found that the substantial adverse effect started again around April to July 2017 and was continuing at the time of dismissal. However, it was noted that Mr Sullivan was under particular stress in 2017 caused by ongoing discussions about his attitude and considered that his condition would improve once those discussions had concluded. The Court of Appeal upheld the Employment Tribunal’s decision.
Employer must know or should have reasonably known that the employee had a disability
In the case of Seccombe v Reed in Partnership Limited (Reed), Mr Seccombe had had three periods of absence related to anxiety and depression over the course of a number of years but the first two predated his employment with Reed. During Mr Seccombe’s employment, he suffered a traumatic event that led to a breakdown and his third period of absence. Reed had been aware of this event but following his return, assumed that the issue was resolved. Mr Seccombe was subsequently dismissed and Reed cited poor performance as the reason for dismissal. Mr Seccombe contended that the dismissal constituted disability discrimination and/or that Reed had failed to make adjustments.
The Employment Tribunal found that Mr Seccombe was not a disabled person because he had never had a formal diagnosis of ‘severe anxiety and depression’. Regardless of that issue, the Tribunal went on to consider whether Reed knew, or should reasonably have known, that Mr Seccombe was disabled. In making its decision, the Employment Tribunal was aware that Mr Seccombe had completed an equal opportunities questionnaire in which he indicated that he did not have any health-related issues or impairment for which he might need reasonable adjustments, nor had he told them of any underlying mental impairment. The Employment Appeal Tribunal upheld the decision.
Key points to take away
Before coming to a conclusion as to whether or not an employee’s condition is likely to amount to a disability, an employer should:
- consider all medical evidence available;
- if there is any uncertainty, seek further medical advice from the employee’s GP or an occupational health adviser, along with legal advice; and
- consider whether any reasonable adjustments are required and consult the employee on any proposed adjustments.
This post was written by the Price Bailey HR and Employment Law team. If you would like to speak to one of our team, please use the form below.
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