Is an employee who suffers from depression “disabled”, as defined by the Equality Act 2010, and therefore subject to protection from disability discrimination?
Depression can, in principle, amount to a legally recognised disability.
This question was considered recently in the case of Saad v University Hospital Southampton NHS Trust & anor. The tribunal noted that the question of whether or not Mr Saad’s condition should be recognised as a disability depended on the facts of the case and, in particular, on whether each of the following four basic questions were satisfied in relation to his condition:
In Mr Saad’s case, the employment tribunal accepted that the claimant suffered from a depressive and general anxiety disorder and that this amounted to an impairment for the purposes of the relevant legislation.
In an analysis of the remaining three limbs of the test, the employment tribunal accepted that Mr Saad’s impairment did have some effect on his ability to carry out normal day-to-day activities. However, it was concluded that the impairment did not have a substantial adverse effect on those activities and could not, therefore, amount to a disability (whether or not such effect was likely to be “long-term”).
On appeal, the Employment Appeal Tribunal held that the employment tribunal had been entitled to conclude, based on the evidence before it, that Mr Saad was not disabled for the purposes of the relevant legislation and was not therefore subject to protection from disability discrimination.
Employers should note that the decision in the Saad case was fact specific, and a different factual background in another case might give rise to a different finding. Moreover, an aggrieved employee suffering from depression may not be limited to bringing a disability discrimination claim. Depression may, depending on the factual circumstances, give rise to a number of other alternative claims under health and safety legislation, protection from harassment legislation, or even as a personal injury claim. As a result, an employer that finds itself with an employee diagnosed with depression is best advised to deal with that individual carefully and thoughtfully.