The issue of mental health and well-being now receives widespread media coverage and has been brought into sharp focus by recent tragic events in the showbusiness world. While it is hoped that a greater awareness will allow individuals to seek the help they need, employers must also be aware of how mental health issues can impact on their people and organisations, and what the law expects of them.
An employee is considered to have a disability under the Equality Act 2010 if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities and can include depressive and anxiety-related impairments.
Part of considering whether the impairment constitutes a disability includes considering the effect on the employee’s ability to cope in their job. If an employee is disabled, their employer will have a duty to make reasonable adjustments for that particular employee.
In 2014, the Employment Appeal Tribunal considered the question of whether anxiety and depression can be classed as a disability under the Equality Act 2010 in Saad v Southampton University Hospitals NHS Trust. Mr Saad’s contract as a Specialist Registrar training to become a Cardiothoracic Consultant was not renewed by the Trust. He claimed that, because his depressive and general anxiety disorder was a disability, he suffered disability discrimination.
The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision that, although they did acknowledge that Mr Saad had a mental impairment due to his depressive and general anxiety disorder, he did not have a disability within the meaning of the 2010 Act as it did not have a substantial adverse or long-term effect on Mr Saad’s ability to carry out normal day-to-day activities. The EAT made the distinction between Mr Saad’s difficulties with certain medical textbooks and communicating with his colleagues, and a situation where someone cannot, for example, undertake everyday tasks such as leaving their home or getting dressed, the latter of which would indicate a disability within the meaning of the 2010 Act.
Although in this case it was decided that the depressive and anxiety disorder was not a disability, such a disorder can be a disability in some cases. Each case depends on the specific circumstances of each employee and a tribunal will decide each case on its own facts and merits. Concerns of the tribunal regarding the quality and consistency of Mr Saad’s evidence was a significant factor, but in other cases, an employee may give more persuasive evidence on the effect of a mental or physical impairment on their day-to-day activities.
Getting it wrong as an employer may mean potentially uncapped tribunal awards if disability discrimination is proved. Law At Work can offer Mental Health Awareness training to employers to help them get it right and to be kind, both to themselves and their people.