SUMMARY: Employment Appeal Tribunal upholds the decision that an employee with a depressive and anxiety disorder did not have a disability.
Legally, an employee is considered to have a disability if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities.
This is a fairly wide definition and due to its specific reference to “mental” impairment”, can include depressive and anxiety-related impairments. However, if there is doubt as to whether an employee has a disability, the definition is considered in detail by an employment tribunal. The tribunal will analyse whether all the parts of the definition are satisfied, which is an activity which the tribunal had carried out in this case.
Part of considering whether the impairment constitutes a disability includes considering the effect on the employee’s ability to cope in their job.
If an employee is disabled, this will have implications for an employer, including a duty to make reasonable adjustments for the disabled employee.
Facts of the case
In the recent case of Mr R A Saad v University Hospital Southampton NHS Trust and Health Education England Mr Saad had a depressive and general anxiety disorder.
The employment tribunal held that Mr Saad was not disabled because although he had a mental impairment, this did not have a substantial adverse, nor long-term, effect on his ability to carry out normal day-to-day activities.
The employment tribunal considered Mr Saad’s evidence to be unsatisfactory as to the effect of the impairment on him. It noted that his oral evidence qualified, or contradicted, his earlier evidence as to the effect of his impairment on his day to day activities.
Mr Saad appealed this decision to the employment appeal tribunal (EAT). One of his arguments was that the tribunal had not considered his ability to communicate with colleagues, access the work-place and concentrate. Amongst other things, he referred to his inability to read two medical textbooks.
The Employment Appeal Tribunal’s (“EAT’s”) decision
The EAT upheld the tribunal’s decision that Mr Saad was not disabled. The EAT considered that the tribunal had considered the impact on his workplace-related activities including his ability to communication with colleagues, access the work place and concentrate.
What does this mean for employers?
Although in this case it was decided that the depressive and anxiety disorder was not a disability, it is clear that such a disorder can be a disability in some cases. Each case depends on the specific circumstances of each employee. In this case, the employment tribunal had concerns about the quality of the employee’s evidence but in other cases, an employee may give more compelling evidence as to the effect of a mental or physical impairment on his day-to-day activities.
When managing sickness absence, including mental impairments, employers should seek medical evidence and legal advice, especially if there is any uncertainty as to whether there may be a disability.
For more information about this case or managing sickness absence, please contact:
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This update is for general guidance only and does not constitute definitive advice.