Putting the stress back into claims for disability

Stress claims will now be easier to pursue under the Disability
Discrimination Act 1995 (DDA), following the Government’s acceptance of a
recommendation that people claiming to have a mental impairment should not have
to show they are suffering from a clinically well-recognised illness.

The acceptance of the Joint Parliamentary Scrutiny Committee’s
recommendation will mean a significant change in the current approach to mental
impairments. Note that section 1 of schedule 1 to the DDA defines a mental
impairment as " … resulting from or consisting
of a mental illness only if the illness is a clinically well-recognised
illness".

Statutory guidance on what qualifies as a clinically well-recognised illness
states that it must be recognised by a respected body of medical opinion. For
example, an illness mentioned in publications by the World Health
Organisation’s International Classification of Diseases (WHOICD) would qualify.

To date, the DDA has not proved a strong ally for applicants suffering from
stress. In Morgan v Staffordshire University
[2002] IRLR 190, the applicant sought to rely on stress as a mental impairment.
The Employment Appeals Tribunal ruled that ‘stress’ is not listed in the
WHOICD, and that mere references in medical notes to ‘anxiety’, ‘stress’ and
‘depression’ were insufficient to qualify a person as disabled.

The committee noted that while mental health conditions have to be
clinically well-recognised, this is not the case with physical impairments, and
that in itself appeared to be discriminatory. In its
view, the demands placed on applicants to prove their mental impairment were
too onerous, and all that should be required is evidence to establish what
effect the condition is having on them and their ability to carry out normal
day-to-day activities.

While the recommendation will not come into force until next year, the
lowering of the threshold, albeit for very commendable reasons, will inevitably
lead to more people suffering from stress being able to qualify as being
disabled under the DDA.

It has long been recognised that the DDA could be an easier vehicle for
making stress claims than the other primary legal route. The latter involves a
claim for a breach of the common law duty of care, where, for liability to
exist, the damage must have been reasonably foreseeable, and the injury must
have been caused by work.

The disability provisions do not require such a stringent test, and cover
all mental health problems, and the impairment does not necessarily have to
have been caused by work. The DDA provides wider protection. For example, an
employee suffering from stress because of matrimonial difficulties, or the loss
of a loved one, might be entitled to protection under the DDA where medical
evidence shows the stress is having a substantial, long-term adverse effect on
their ability to carry out normal day-to-day activities.

As with claims for a breach of the common law duty of care, compensation is
unlimited in DDA cases. But the tribunal claims are often a lot less costly for
applicants than litigation in the civil courts, and may prove a much more
attractive proposition.

On the basis that preventing a problem is better than curing it, there are
certain steps an employer can take to minimise the risk of stress-related
illness occurring.

Employers have a legal duty under the Management of Health and Safety at
Work Regulations 1992 to conduct a comprehensive risk assessment to establish
physical and psychological factors that are a risk to health – including
work-related stress.

Given the focus in disability cases on considering reasonable adjustments to
support disabled staff, the Disability Rights Commission code of practice
indicates that it may well be reasonable for employers to consider providing
some degree of counselling and specific on-the-job personal support in times of
high stress.

Later this year, the Health & Safety Executive is set to launch a set of
stress management standards to help employers tackle the issue more
effectively. This will enable employers to measure their efforts against
benchmark standards set out for the main workplace stressors: demands on people,
the control they have over their work, the support they receive, their
relationships at work, the role they perform, and how change is managed.

By Makbool Javaid

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