Everyone has sympathy for employees who are genuinely unwell. When advising employers about employees suffering from stress, various medical conditions and resultant absence, it is these words that come up again and again. Unfortunately, considerable confusion arises because each of these terms has a different colloquial meaning from the meaning in an employment law and medical context.
This word had a very different colloquial meaning thirty years ago. In Employment Law, 'disability' is a defined term in the Equality Act 2010. An employee is disabled if they have 'a physical or mental impairment' that has a ‘substantial and long-term’ adverse effect on their ability to carry out normal day to day activities. This is regardless of the precise diagnosis of the medical condition, although certain medical conditions (cancer, HIV infection and MS) will always be considered disabilities. Furthermore, you discount the effect of medical treatment (including counselling) when considering if an employee is 'disabled' in terms of the Equality Act.
The reality is that every workforce is likely to have more employees who are within the definition of 'disability' than most employers expect. Employees who previously met the definition but are in remission may well be covered as being 'disabled'. Confusingly, those that have progressive conditions that do not currently meet the definition but are likely to in the future may also be covered.
Some pressure can be good and helps us perform better. When this pressure exceeds our resilience to cope, we may feel stressed. Some stress is good. Some people use the word instead of 'pressure'. Being under excessive 'stress' for a prolonged period may give rise to medical conditions such as depression.
“'Stress' in itself is not a medical condition.” As Dr Munna Roy of Integral Occupational Health Advisers puts it: “This may seem surprising to employers, bearing in mind thousands of medical certificates are issued each year with ‘stress’ as the ‘diagnosis’. Effective management of 'stress' - attributed sickness absence requires differentiation from medical conditions such as depressive illness.”
This is not just about what adjustments managers think in their view is 'reasonable' depending on an employee’s ill health. Many accommodations are made for employees who have been ill whether or not they have a medical condition and whether or not they are 'disabled'.
However, the legal obligation to make 'reasonable adjustments' in terms of the Equality Act 2010 only arises when the employee is 'disabled' and where a provision, criterion or practice (such as a particular workplace practice applied to all staff), or a physical feature, puts a 'disabled' employee at a substantial disadvantage compared to an employee who is not 'disabled'. Employers owe this duty to existing employees, applicants and, in limited circumstances, to disabled former employees.
Employers cannot justify a failure to make a reasonable adjustment, unless they did not know and could not reasonably be expected to know about the employee's disability. Where the duty arises, the issue is whether or not the adjustment was ‘reasonable’ and this is an objective question for the courts to ultimately determine. There is a wealth of guidance on such from the Tribunals and from ACAS.
Understandably, this can at first seem a confusing area of the law. However, once the language in this area is considered correctly and the case law and guidance understood it is relatively easy to navigate through any situation that arises in the workplace and keep on the right side of the law.
These issues and others will be explored on the 8th February 2016 at the “Dealing with Mental Health Issues at Work” Seminar. For more information on this seminar and to register your interest please click here.