When is depression termed as a disability?

depression anxiety

(Saad v University Hospital Southampton)

Mr Saad, a specialist registrar in cardiothoracic surgery, was employed by University Hospital Southampton under a series of fixed-term contracts. The last contract expired in September 2012, without another one introduced in its place. Subsequently, Mr Saad brought a claim for disability, through suffering from depression and anxiety. As a result, he argued that the non-renewal of the contract breached his rights under the Equality Act 2010. Although the employment tribunal did not dispute that Mr Saad suffered from depression and anxiety, it did not consider these to have a substantial, adverse or long-term effect on his ability to carry out daily activities, which is a key point required under Section 6 of the Act.

Mr Saad appealed to the EAT, suggesting that the effects of his condition in relation to his employment were not properly considered, and that it could be termed a disability because he suffered from long-term effects despite it fluctuating. The EAT dismissed Mr Saad’s argument in its entirety, suggesting that the tribunal had assessed the effects of the impairment on the work environment. The EAT were satisfied that the tribunal had obtained sufficient evidence to reach its conclusion that the illness did not have a substantial adverse effect on Mr Saad’s daily activities in the long term. As a result, Mr Saad lost his case.

Simon Horsfield Says: It is all too easy to think that a mental or physical impairment which is long-term in nature will automatically amount to a disability. This case is a helpful reminder that there is a third limb to the test for identifying whether an impairment amounts to a disability: does the impairment have a substantial adverse effect on day to day activities? Where, as was the case here, there is an argument that the adverse effects fluctuate, then employers should not be so quick to concede disability. I would always recommend putting the Claimant to strict proof in these circumstances by requiring them to provide a statement of the alleged adverse effect; this can then be run past your medical expert for their comment before any decisions are taken.


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