Burnout and work-related stress are on the up. In 2015/16, the UK has seen a total of 488,000 reported cases of work related stress, depression or anxiety. A recent case has raised the question of where to draw the line between employees being disabled due to stress, or just unhappy at work.

Under the Equality Act, ‘disability’ is defined as a physical or mental impairment that has a substantial and long term adverse effect on the employee’s ability to carry out day to day activities. Such employees are protected from discrimination in the workplace.

In Herry vs Dudley MBC, Mr Herry had been off work for more than three years. During the last year, the reasons for absence ceased to be physical and focused instead on stress. Mr Herry brought a discrimination claim against his employer, arguing that his work-related stress constituted a disability.

The tribunals found that Mr Herry was not a disabled person for the purposes of the Equality Act and that, despite this stress, there was little evidence it had any effect on his ability to carry out normal activities.

Although this case contains some helpful guidance for Watford employers, caution is encouraged when deciding whether an employee suffering from stress is disabled. The margins are fine and ultimately, only the tribunal can determine whether the definition of disability under the Equality Act is satisfied.

Each case will turn on its specific facts. Employers should seek to obtain information from occupational health and other medical practitioners where appropriate to enable them to make an informed decision about whether an employee meets the criteria of disability under the Equality Act.