Meaning of Disability

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The Problem

Is depression or stress and anxiety a disability within the definition in the Equality Act 2010?

This is often an issue we discuss with clients and, usually, when we hear an employee has been signed off with such a condition our thoughts turn to the issue of disability discrimination.

The Principle

A disability, as defined in the Equality Act 2010, is a physical or mental impairment which has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities.  As such it is not necessarily the case that depression or stress and anxiety will be a disability.

In the case of Saad v University Hospital Southampton NHS Trust the EAT found that an employment tribunal was entitled to conclude that Mr Saad was not disabled despite the acceptance that he suffered from a depressive and general anxiety disorder.  This disorder meant he had an impairment for the purposes of the Equality Act 2010.

However, the employment tribunal went on to find that the impairment did not have a substantial, adverse or a long-term effect on his ability to carry out normal day-to-day activities.

Mr Saad appealed this decision on the grounds that he believed the tribunal had not considered the effect of his impairment on the work environment and, in particular, on his ability to communicate with colleagues, access the work place and concentrate.  Had it done so, Mr Saad argued, it would have found the impairment had a substantial adverse effect.

The EAT rejected this appeal.  It noted that, upon a fair reading of the whole decision, the tribunal did assess the effects of the impairment on Mr Saad’s workplace, his ability to concentrate and communicate with colleagues and access the work place.  As such, the tribunal’s decision stood.

The Practice

The old mantra applies – every case needs to be assessed on its own merits.  This mantra is acutely relevant in the context of disability.  However, this case provides helpful guidance on the interpretation of the Equality Act definition of disability and means employers need not assume from the outset that depression or stress and anxiety is a disability.  If anything, it should encourage employers to take early and specific advice from medical professionals.

It is also worth noting that the EAT accepted that ‘adverse effects’ could be long-term even if the effects fluctuated over time.

For more information, help or advice please contact Tim Davies on 0191 211 7927.