In Herry v Dudley Metropolitan Borough Council, the Employment Appeal Tribunal (EAT) considered an appeal against an Employment Judge’s decision that an employee suffering from dyslexia and stress was not disabled.
The definition of a disability in the Equality Act 2010 requires a claimant to show that they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Mr Herry was diagnosed with dyslexia in 1996 when he started university. From 2008, he worked as a design and technology teacher for Dudley Metropolitan Borough Council. At no time did he mention his dyslexia to his colleagues or ask for any adjustments. From May 2010, Mr Herry submitted many sickness certificates, and from June 2011 was continuously on sick leave. Initially the sick notes referred to a fractured ankle and then pain. However, from October 2013 onwards, they referred only to ‘work- related stress’, ‘stress’ or ‘stress and anxiety’. In 2012, Mr Herry brought proceedings against the Council on wide-ranging grounds, making over 90 allegations covering a period of four years. After a hearing which lasted 39 days, all his claims were dismissed. In 2014, Mr Herry brought a further set of proceedings against the Council, including a claim of disability discrimination arising from his dyslexia and stress.
The Employment Tribunal ruled that Mr Herry was not disabled. His coping strategies were effective to reduce the adverse effects of his dyslexia, and he had not shown that it had a substantial adverse effect on his ability to carry out normal day-to-day activities. Although Mr Herry had been off work for a long time due to stress, he had also failed to demonstrate that this stress had any adverse effect on his ability to carry out normal day-to-day activities, other than occasionally exacerbating his dyslexia. The Tribunal observed that his stress was largely a result of his unhappiness about what he perceived to be the Council’s unfair treatment of him, rather than a mental condition.
Mr Herry appealed to the EAT. He argued that because he had needed some adjustments for his dyslexia to assist him as a litigant in person in the first Employment Tribunal proceedings, he was necessarily suffering a substantial adverse effect whilst teaching. The EAT dismissed this argument, noting that it was not surprising that he needed some adjustments to help with the Tribunal proceedings, given the length and complexity of the case, and it did not follow that he was at a disadvantage in his professional life. Mr Herry also argued that the Tribunal’s findings on stress failed to take account of his lengthy absence from work and the terms of his medical certificates, which showed that he had lost the ability to cope and that there was an adverse effect on his normal day-to-day activities. However, the EAT also dismissed this argument. The Tribunal was entitled to conclude that his stress was a reaction to life events, and was not bound to find that he was disabled just because he had been certified as unfit for work for a lengthy period of time.
This decision confirms the distinction highlighted in previous cases between stress caused by adverse life events, such as difficulties at work, and a mental impairment, which is more likely to be described as depression. It is worth noting that none of Mr Herry’s medical certificates referred to depression. Many employers will be familiar with employees going off sick with stress when they are unhappy with the way they have been treated at work, and being unwilling to return until the issue has been resolved. As this case makes clear, these employees will not necessarily be suffering from a disability as defined in the Equality Act.