What is ‘disability’?
We all have sympathy for employees who are genuinely unwell and the majority of clients that I work with are a particularly sympathetic bunch, who sometimes get taken for a bit of a ride because of it.
In talking to businesses about ‘stress’, ‘low mood’ and other sundry medical conditions that result in sickness absence I often have to explain that what a GP might put on a fit note and what employment law says are two different things.
The term ‘disability’ in employment law has a very specific definition relating to the Equality Act 2010.
It is defined as ‘an employee who has 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, even in remission. Additionally, an employee that has a progressive condition that doesn’t currently meet the definition but is likely to in the future may also be covered.
The Health and Safety Executive (HSE) defines stress as:
“The adverse reaction people have to excessive pressures or other types of demand placed on them.”
The HSE also emphasises that it is important not to medicalise stress, as stress is a state, not an illness; however, if mismanaged it can lead to the development of mental and physical illnesses.
There is a difference between pressure and stress. Pressure can be positive and a motivating factor, and is often essential in a job. It can help us achieve our goals and perform better. Stress occurs when this pressure becomes excessive. Stress is a natural reaction to too much pressure.
Importantly, a person can experience excessive pressure and demands outside work just as much as they can at work. Unfortunately, many cases that I see are more to do with home and personal life than they are with the normal requirements of a job - stress tends to build up over time because of a combination of factors that may not all be work related. Conflicting demands at work and home can cause excessive stress.
Dr Munna Roy, the Medical Director of Integral Occupational Health Ltd puts it succinctly: “Stress in itself is not a medical condition. 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.”
So what can you do when presented with a GP certificate that gives ‘stress’ as the diagnosis? It helps to have a checklist that you can use to try and identify the source of the stress for the individual. This might include questions relating to work stresses (changes in the role, the role itself, demands, support from colleagues etc) and those related to home and personal circumstances (relationships, family commitments and the conflict between those and work, financial hardship etc). Your goal is to aim to prevent the employee declining into a situation where the stressors culminate with a diagnosable mental or physical illness, (depression is common and there is medical evidence to show that the conditions that lead to a stroke can be exacerbated by stressful situations). It is better to spot the potential problems early on and put a mitigation plan in place. This might include what are known as ‘reasonable adjustments').
What are Reasonable Adjustments?
This is not just about what adjustments you might think are '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 employees), 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. A reasonable adjustment could be something as simple as adopting a flexible approach to an employee’s start and finish times, or it could be more substantial, such as providing a room for employees classed as disabled to take a rest at lunchtime.
Reviewing your firm’s attitudes to supporting employees can be the most effective method of ensuring that what starts as a case of stress caused by something quite simple and easily rectified does not deteriorate into a full-blown illness.
If you would like to ask any questions about this topic and to better understand how we can help you with any issues you may have in regards to stress management then please drop me a line.