You may or may not know that the number of Employment Tribunal claims is rapidly on the rise. In our experience a lot of these new claims tend to be more complex. In particular discrimination claims.
With mental health related issues unfortunately also being on the increase, we are seeing a significant rise in the number of disability discrimination claims on the basis of a mental health condition being alleged as the disability.
It is for the employee to establish that they have a disability and to do so they have to satisfy the following:
- They have a physical or mental impairment.
- That impairment must impact their ability to do normal day to day activities.
- That impact but be substantial.
- It must have lasted, or be likely to last for 12 months or more.
Also, remember that the above is judged without the benefit of any medication the employee may be taking.
Mental health issues are often difficult to pin down, particularly in terms of how long they may last. A recent case has been through the Court of Appeal on this issue and has provided some helpful (and employer friendly) guidance. The case is Sullivan v Bury Street Capital Ltd, but to save you the joy of reading the whole case, we will set out a summary of the relevant key points below.
In this case the employee suffered from paranoid delusions – a mental health condition. The question was whether this satisfied the 4 hurdles above. These delusions had occurred over many years, so on the face of it they may be considered long term. However, the Court of Appeal found that despite this, the delusions had only had a substantial adverse effect on the employee’s normal day to day activities during 2 discrete periods. Each of these periods only lasted a matter of months and so therefore they found that the substantial adverse effect on normal day to day activities was not long term (i.e. lasting 12 months or more).
Now, just because something doesn’t affect the employee every day for 12 months doesn’t necessarily mean the test isn’t satisfied. That is because if the substantial adverse effect is “likely to recur” it may therefore go over the magic 12-month mark.
On the question of “likely recurrence” the Court of Appeal said that the question of whether the substantial adverse effect was likely to recur has to be assessed on the information available at that relevant time. It isn’t enough that it simply did recur.
So, what does that mean for us? Certainly some mental health issues continue almost day in day out. Those cases aren’t impacted by this decision. However, it is helpful because some mental health issues are reactive to specific events – whether in an employee’s personal or work life. For example, an employee having a “stress reaction”, which we often see on fit notes.
Whilst we may have taken an ever-cautious approach in these cases, this Court of Appeal ruling does give us more confidence to look at the facts available at that time, and make a judgement call on whether those facts indicate that the substantial adverse effect is likely to recur.
If you are facing difficulties with employees with mental health problems, give us a call on 01332 866610 and we can advise you on the best way to proceed.