According to government statistics for 2019/2020, it’s estimated that there were 828,000 cases of work-related stress, depression or anxiety, causing 51% of working days lost and amounting to a total of 17.9 million working days lost in Great Britain. It’s likely that the effect of the pandemic will have exacerbated this further.

Cases are high and will continue to increase, so more employers will encounter this issue in their workplaces. A potentially important question, therefore, is whether an employee can claim for disability discrimination if they are treated less favourably due to long-term stress.

In order to fit the definition of disability under the Equality Act 2010, which would allow a discrimination claim relating to disability as a protected characteristic, there must first be a physical or mental impairment. The Act then explains that the impairment – in this case stress – must affect the claimant in the following ways. The impairment must be:

  • substantial;

  • long term; and

  • have an adverse effect on their ability to carry out normal day-to-day activities.

To be considered substantial, the Act tells us that the stress would have to have a ‘more than minor or trivial’ effect on a claimant.

Just how serious is stress? This will depend entirely on the individual. Stress could be as minor as affecting one’s ability to enjoy watching television or as serious as causing anxiety and depression. This substantial impairment must also be long term (i.e. lasting or expected to last more than 12 months) and affect the individual’s ability to carry out normal day-to-day activities. An example of this would be not being able to concentrate on a task for more than a few minutes because the stress is so overpowering.

Now that we’ve established (in theory) how work stress could be applied to the protected characteristic of disability, can it actually be applied in practice? And what effect would this have on the number of claims for discrimination by an employer arising from a disability?

This is where the case of Herry v Dudley Metropolitan Council [2016] at the Employment Appeal Tribunal (EAT) comes in. The tribunal considered, along with other issues, whether stress would amount to a disability. It was concluded that long-term stress does not, on its own, result in a mental impairment required to amount as a disability.

Rather, medical evidence would be required in order to establish its seriousness to be considered as a disability. The judgment refers to the decision in J v DLA Piper [2010], which clarified the difference between stress causing “low mood and anxiety” and stress causing clinical depression. The case concluded that the former is not considered as a condition resulting in an impairment under the Act, with clinical depression clearly being covered by the legislation. The Judge in Herry acknowledged, however, that work-related stress can result in an impairment, therefore implying that a similar claim in the future could pass the test for a disability if it resulted in a substantial effect on the individual.

It seems likely that an alternative decision by the EAT could have potentially contributed to the opening of floodgates in relation to claims as a result of stress because of the large number of people who experience it. The decision is good news for employers, but not exactly a devastating one for employee rights. This is due to the already extensive legislation protecting employees from discrimination and the existing law for those experiencing work-related stress. Therefore, this doesn’t appear to be an outcome that employees should lose sleep over – particularly if they are already stressed!