Coronavirus: Employer’s resource centre — live guidance available here

Disability and depression: drawing a distinction

Employment Law & HR
BG Purple

Are all cases of depression a disability? Maybe we should just treat them as being disabled anyway just in case? 

Many employers prefer to err on the side of caution with cases of depression which may (or may not) fall within the remit of the Equality Act 2010. Naturally it is one of the more difficult illnesses to distinguish as a disability because of its subjectivity.  

However the Employment Tribunal does not appear afraid to draw the distinction between depression which is and is not a disability. For instance, in the recent case of Saad v University Hospital Southampton NHS Trust and another, the Employment Judge did not hold back in finding that a Claimant’s depression did not amount to a disability under the 2010 Act. 

Mr Saad was a Special Registrar in cardiothoracic surgery. He was employed on numerous rolling fixed term contracts but in September 2010 his final contract was not renewed and his employment came to an end. He raised a Tribunal claim, arguing that he was depressed and that his employer had discriminated against him on the grounds of his disability.

The Employment Tribunal agreed that he was indeed depressed, but this did not mean that he was automatically disabled. In making its decision it ruled that having the condition alone was not sufficient to amount to a disability under the Act. It highlighted that, for Mr Saad to be disabled, his impairment would need to have a substantively adverse, long term impact on his ability to perform his day to day activities. That was not the case in this instance.

The Claimant appealed against the decision but this was rejected by the EAT. It took the view that the ET was entitled to conclude that Mr Saad’s condition did not have a substantively adverse impact on his day to day activities and therefore the ET was right to conclude that he was not protected by the Act.

It is refreshing to see that the ET is taking a robust approach in applying the test for disability. This case highlights the importance of taking a holistic view to the assessment of condition which may appear borderline under the Act. If you are a Law at Work client and need to discuss any aspect of absence management, do contact your Legal Manager for more advice.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division