A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In Herry v Dudley Metropolitan Council, the Employment Appeal Tribunal (EAT) held that just because a tribunal had made adjustments in relation to the claimant’s dyslexia and the fact he had a long period off work due to stress did not necessarily mean that he had a disability as defined.
Mr Herry worked for the Council as a teacher of design and technology from January 2008. He never mentioned that he had dyslexia and did not ask for any adjustments to be made. From May 2010 until April 2013, he lodged a number of sickness certificates which mainly referred to a physical injury, but from October 2013 onwards, the certificates referred to work-related stress or stress and anxiety.
In 2012 Mr Herry brought proceedings against his employer which consisted of 90 allegations mainly relating to allegations of race and disability discrimination (dyslexia and stress). The Council accepted he had dyslexia but did not concede that this amounted to a disability. Nor did it accept his stress amounted to a disability.
In relation to disability the tribunal found that Mr Herry had not provided evidence to show that his conditions had an adverse effect on his ability to carry out normal day-to-day activities. In relation to his claim of stress the tribunal found that this was “a reaction to life events”.
The tribunal also found that Mr Herry had acted unreasonably in bringing and pursuing the proceedings and ordered him to pay the whole of the Council’s costs which were assessed at over £110,000 on the basis that he would be able to resume an active working life at some point and his means would therefore improve.
Mr Herry appealed.
In relation to the decision on costs, the EAT upheld the tribunal’s decision to order Mr Herry to pay the full costs but that this was subject to his ability to pay. In relation to that question the EAT found that the tribunal should have considered what his future earning capacity might be and whether awarding all the costs against him was reasonable and proportionate having regard to this. This part of the appeal was remitted back to the tribunal to consider.
However, it rejected Mr Herry’s appeal against the decision on his disabilities on the ground that he had not established the requisite substantial long-term adverse effect as he could not show that it had an impact on his normal day-to-day activities.
In relation to his dyslexia the EAT rejected an argument that because the tribunal had made adjustments for him as a litigant in person he had a disability as defined. The fact that he had appeared at a tribunal was not an activity relevant to his professional life as a teacher. Although both involved reading and writing, the nature of the former was quite different where the proceedings had lasted for 39 days.
In relation to his stress the EAT held that the tribunal had drawn a distinction as per J v DLA Piper between a mental impairment which was a disability and a reaction to life events. In finding that Mr Herry’s stress was “clearly a reaction to life events” the tribunal found that Mr Herry fell into the latter category. Furthermore, the fact that a reaction to adverse circumstances was long lived did not necessarily mean that it amounted to a mental impairment. Long-term sickness absence is not conclusive as to the existence of a mental impairment.
The case is a reminder of the importance of establishing evidence of how conditions such as stress, anxiety and depression have a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities.