“Disability” is a protected characteristic under the Equality Act 2010 (the “Act”). This means that employees with a disability are protected from direct and indirect discrimination. Employers are under a duty to make “reasonable adjustments” for such employees. If a disabled employee is subject to discrimination or their employer fails to make reasonable adjustments, the employer may face a tribunal claim.  It is essential for employers to identify any employees who might enjoy protection under the Act because of a disability.

Unfortunately, an employee’s sick note will not necessarily tell you whether an employee would be considered disabled. The note will simply state that the employee is “unfit for work” and note the condition identified. Where a note states that the employee if unfit for work because of stress, depression or anxiety it can be very difficult for employers to know whether or not the employee enjoys protection under the Act (and therefore if reasonable adjustments are required).

Firstly, it is important to understand the difference between a “disability” and an “illness” because an employee with a disability enjoys protection under the Act but an employee with an illness does not.  In order for depression (which is categorised as a “mental impairment”) to be considered a “disability” it must be:

1. Long standing; and
2. Have a substantial effect upon day to day activities.

There is no specific guidance as to the meaning of “long standing”.  In our experience this means a condition that isn’t related to the current circumstances i.e. it already existed.  The “substantial effect upon day to day activities” element looks at how a condition restricts an individual from participating in activities in their daily life.

What do I do as an Employer?

If an employee is “disabled” (rather than “ill”) their employer must make “reasonable adjustments”.  Making reasonable adjustments might require making allowance for the disability and amending working practices and procedures accordingly.  Given the potential complexity of making such adjustments it is important to identify early whether an employee disabled.

If you are unsure whether your employee enjoys disability protection, you should take advice from an employment lawyer immediately. Taking advice at an early stage can significantly reduce the risk of a disability-related claim. Whilst Lawyers cannot necessarily advise on medical matters they can advise how medical evidence (from a Doctor or Occupational Health Advisor for example) would be applied in the Employment Tribunal and therefore help you to decide whether adjustments are required or not.

If you would like advice on disability discrimination and reasonable adjustments, please contact our Employment Team on 01270 6254768 or complete the form linked here and we will call you back.

For more information see our Employment services page.