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When will depression/anxiety amount to a disability?

Depression and anxiety are common impairments suffered by many but in order to gain protection from discrimination employees will need to meet the tests in the Equality Act 2010 relating to disability. These include that the effect of the impairment must be serious and long-term. The tests must be met at the relevant time (when the discrimination occurred).

In Saad v UHS NHS Trust, Mr Saad was a Specialist Registrar in cardiothoracic surgery. He suffered from panic attacks relating to work and insomnia. He had a history of sickness absence and had raised grievances against the Trust. The Employment Tribunal considered Mr Saad’s witness evidence and found that it contradicted what he had told his GP and occupational health. There was insufficient evidence to prove how frequent the effects of his impairment occurred and the extent of the difficulties he faced on a day to day basis. The Employment Tribunal found that he was not disabled under the Act.

Mr Saad appealed. He argued that the Tribunal had not properly considered the effect on his work environment including his inability to communicate with colleagues and to concentrate. The Employment Appeal Tribunal (EAT) has held that the Tribunal was correct in its approach. Mr Saad had failed to return to work because he did not want to work with his colleagues, not because of his health. The EAT agreed that Mr Saad was able to deal with correspondence by email and on the telephone and that this was inconsistent with medical evidence which provided that his concentration was good and his anxiety was temporary.

This case reiterates the point that each case must be decided on its own facts. However, the evidence given by Mr Saad appears to have been inconsistent which is unlikely to have assisted him. Tribunals take a functional approach to disability. The four stages of the disability test must be met and medical evidence will be crucial in determining the Claimant’s health at the relevant time.



Posted in: Employment

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