If you ask an employer or HR manager whether a diagnosis of depression and anxiety means that an employee is disabled for the purposes of the Equality Act most, probably erring on the side of caution, would reply in the affirmative.
Many GPs sign off employees as suffering from anxiety and/or depression, sometimes adding that it is work-related, which opens up a whole new area from the employer’s perspective. It is not the employer’s function to second guess the diagnosis but many will, perhaps after a few weeks of absence, refer the employee to an occupational health consultant, for examination and a report.
According to the Equality Act 2010 a person is disabled if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Many people know that, in simple terms, “long term” means 12 months. However the Act says that an impairment is long term if it has lasted for 12 months, is likely to last for at least 12 months or for the rest of the life of the person affected. In addition, if an impairment ceases to have a substantial adverse effect it is to be treated as continuing to have that effect if it is likely to recur.
In Saad v University Hospital Southampton NHS Trust and Health Education England the Employment Appeal Tribunal considered the meanings of both “substantial adverse effect” and “long term”.
Mr Saad was a specialist registrar in cardiothoracic surgery. He maintained that he had a disability within the meaning of the Equality Act 2010 based on a diagnosis of a depressive and general anxiety disorder. He said that his condition impacted in the work environment including his ability to communicate with colleagues, access the workplace and concentrate. In addition the condition was long term, even though the symptoms fluctuated over time.
At an employment tribunal it was accepted that he suffered from a depressive and general anxiety disorder. However this did not have a substantial adverse, nor a long term, effect on his ability to carry out normal day-to-day activities. Accordingly his claim failed.
On appeal it was accepted that communication with colleagues, ability to access the workplace and concentration all formed part of normal day-to-day activities. His barrister contended that, taking into account decisions of the European Court disability should mean a “limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full effective participation of the person concerned in professional life on an equal basis with other workers”.
It was noted that Mr Saad had been employed under a series of fixed term contracts from early 2003 until September 2012. He raised a number of grievances with his employer in July 2011 and was signed off work by reason of ill health and, apart from a brief spell in February 2012, did not return to work. He was initially signed off with a diagnosis of pain and insomnia and was subsequently diagnosed as suffering from anxiety and depression. In the tribunal he gave evidence about his condition:
He becomes tense and anxious if he is near UHS or unexpectedly sees anyone from UHS. He cannot speak with colleagues on the telephone about hospital issues and when he has met colleagues unexpectedly he has become anxious and started to sweat and shake. There was no indication of when or how often this had occurred. He was “totally confined” to his flat and could not leave it unless it is absolutely necessary to do so, which means he cannot undertake shopping or go out for walks. He could not read two books which he purchased because he found it difficult to concentrate. He now deletes all emails he receives which are, or may be connected with his medical work.
The tribunal noted that there was no evidence concerning when and how often these symptoms occurred and the extent to which they impacted on his day-to-day activities. Contradictions emerged when he was cross-examined. He had looked after himself while his wife was away and had travelled abroad on at least three occasions. He had been able to go out walking and take exercise and had not encountered any difficulties in taking part in the proceedings, including attendance at employment tribunal hearings. Further, in November 2011 he had reported that he was fit to return to work. However he could not do so because of ongoing procedures with the employer and because of his anxiety about returning to his existing job. More specifically he told his GP that he had been fit enough to return to work but had not done so because he did not want to work with his former colleagues. His absence was not because his symptoms were adversely affecting his day-to-day activities but because of ongoing grievance procedures. However he continued to delete emails from work without reading them and was unable to read two books about cardiothoracic surgery because he was unable to concentrate sufficiently to do so.
Evidence was received from two doctors. One confirmed a diagnosis of depressive illness. the other provided a diagnosis of depressive and anxiety disorder. However he was concerned that Mr Saad might be feigning symptoms and was unable to advise on the level of disability.
The tribunal accepted that he suffered from a depressive and general anxiety disorder during the relevant period. However the effect was neither substantial nor long term. As a result Mr Saad was not disabled within the meaning to the Equality Act.
Mr Justice Lewis, sitting in the Employment Appeal Tribunal, found that the tribunal was well aware of the effect that Mr Saad said the impairment had on him. However the evidence lacked particulars and was “substantially contradicted” by evidence in cross-examination and the contemporaneous medical notes. He had not returned to work, not because of medical difficulties but because he did not want to work with his former colleagues. he was able to manage phone calls and emails that he considered appropriate. In February 2012 his doctor recorded that he had “good (normal)” concentration.
Taken as a whole the evidence did not suggest that Mr Saad was suffering from the substantial adverse effect alleged.
He then went on to consider the question of “long term”. Accepting that adverse effects may be long term for the purposes of determining if a person is disabled even if the effects fluctuate he noted that the tribunal was not concluding that the adverse effects were not capable of being long term because they fluctuated. Rather, it concluded that there was not a substantial adverse effect. There was therefore no need to consider whether any substantial effects had to be long term.
The case is not in any sense groundbreaking in that the relevant law has been in place for several years. However it does provide a good example of how the law can (and should) be applied in practice and why it is often unwise to make snap decisions concerning the definition of disability.