04th January 2017

Disability Discrimination: When is work stress a disability?


As employment lawyers, we often hear from clients who wish to bring a disability discrimination case against their employer relating to stress they have suffered due to problems at work. As we begin 2017 and employees return from their Christmas breaks, some will undoubtedly feel that work difficulties experienced at the tail end of 2016 will stretch headlong into the New Year, becoming intolerable. 

The challenge that is most often presented to us is whether an employee suffering from stress actually has a viable case where their symptoms fit the legal definition of “disability”.   

What is the legal definition of a disability?  

The Equality Act 2010 (“EqA 2010”) sets out the legal definition of “disability” and boils this down to four key questions:

  1. Does the person have a physical or mental impairment?
  2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  3. Is that effect substantial?
  4. Is that effect long-term? 


The Employment Appeal Tribunal (“the EAT”) has laid down some important guidance on when stress caused by troubles at work may amount to a disability. 

In Herry v Dudley Metropolitan Council UKEAT/0100/16 and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16 the EAT upheld a tribunal's decision that an employee was not disabled under the EqA 2010. 

Mr Herry brought a disability discrimination claim based on workplace stress. Mr Herry had been signed off from work for long periods, with his doctor supporting this action noting the reasons given as stress, work related stress and stress at work. It was not disputed that difficulties at work were the cause of the stress alleged, and that Mr Herry was otherwise free to pursue his life and hobbies. 

However, the EAT held that the individual’s stress had been a reaction to difficulties at work (which cannot be a disability) and which can be distinguished against a mental impairment such as low mood or anxiety which can amount to clinical depression (which can be a disability), and he had failed to establish that his condition had a substantial adverse effect on his day-to-day activities.

The EAT made the following observations in relation to cases where an employee's work situation is the cause of their stress: 

  • There is a class of case where the employee will not relent or compromise over a work issue, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on their normal day-to-day activities. 
  • A doctor may be more likely to refer to the demonstration of such a deep-seated position as "stress" rather than anxiety or depression. 
  • A tribunal is not bound to find that there is a mental impairment for the purposes of disability in such a case. Unhappiness, or a propensity to nurse grievances, or a refusal to compromise is not automatically mental impairments; they may simply reflect a person’s character or personality. 
  • Any medical evidence presented to a tribunal that supports a diagnosis of a mental impairment must be considered very carefully, as must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction. 

Ultimately, the question whether there is a mental impairment will be one for the employment tribunal to determine.


This case will be welcome relief for employers and lawyers alike, as although it is not new law, the EAT has provided helpful guidance on some common issues which it was presented with. 

Although each case needs to be assessed on its individual facts, employers need not be scared or stunned into submission by medical terms being banded about loosely – indeed, the EAT here has confirmed that labels such as “stress”, “depression” and “anxiety” cannot be relied upon alone to substantiate that an employee suffers from a disability within the meaning of the EqA 2010. 
To find out more information about disability and discrimination law, click here.

If you would like any further information in relation to disability discrimination or any other HR and Employment Law queries then please contact our Employment law team on 0808 168 5550 or

For further information please get in touch with our dedicated team.

You can always call us on 0845 894 1622 or email on


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