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This article was published on January 13th, 2017
Employment Appeal Tribunal – Herry v Dudley Metropolitan Council – The question of whether an employee is or isn’t disabled continues to test employers, and there seems little sign of that easing. As this case highlights, it’s a challenge for employees too. They must be able to show that their condition had the substantial adverse long-term effect on day-to-day activities that the legal definition of disability requires.
Mr Herry claimed disability (and race) discrimination. He had had various periods of sickness absence, latterly for stress. He was also dyslexic, but hadn’t mentioned that to colleagues at the school at which he taught and hadn’t asked for adjustments to be made. The disability discrimination element of his claim related to (a) dyslexia and (b) stress and depression.
The tribunal held that Mr Herry hadn’t shown that his dyslexia met the test for disability. He had used coping strategies and, given that teaching is a demanding occupation, the fact that he was able to work as a teacher indicated that his coping strategies were effective in most situations. As for stress, there was little or no evidence that it had had any effect on his ability to carry out normal activities, other than that it occasionally aggravated his dyslexia. The evidence pointed towards his stress being largely a result of his unhappiness about his perceived unfair treatment; it was a reaction to life events. And depression wasn’t referred to in any of the relevant sickness certificates.
The Employment Appeal Tribunal upheld the tribunal’s decision. Although Mr Herry had been certified unfit for work for a long period because of stress, that didn’t mean that he had a disability. He hadn’t established a mental impairment, or the necessary substantial long-term adverse effect.
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