When depression is classed as a disability?

We are often asked by Clients whether or not an employee’s medical condition is classed as a disability and if so, what action they should take in order to ensure that they meet their obligations as a responsible and supportive employer.

The case of Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians (ET/3200619/2015) serves as a clear illustration of how important it is to take reasonable steps to determine whether or not an employee is disabled.

This case concerned Ms. Wickers who worked as an optical assistant at Specsavers. Early in 2014 Ms. Wickers was required to work on the shopfloor which, she was not comfortable to do because she found it difficult to interact directly with customers.

From having a good employment record, Ms. Wickers began to encounter problems in her work which resulted in her receiving a number of formal and informal warnings relating to a range of issues, including failing to follow company reporting procedures for sickness absence, poor timekeeping and an error when dispensing medicines.

During her appraisal with a director of the Company a few months later, Ms. Wickers became upset and was advised by the director to see her GP which, she did. A few weeks later on her return to work following a period of sickness absence, Ms. Wickers told the director that she was suffering from depression to which he replied that he had no sympathy for “this kind of thing” and that “everyone gets depressed sometimes, you just have to pull yourself together”.

Over the next three months Ms Wickers continued in her employment and had further days off sick and also received another warning for a dispensing error.

Shortly after receiving the warning, Ms Wickers was late for work and on that occasion the director called her into his office. She was clearly upset.  Without asking why she was late or responding to her informing him that she was on medication and suffering from depression, the director told Ms Wickers that he was going to proceed “straight to disciplinary action” and that whilst not the only possible outcome, dismissal was a likely outcome.

Unsurprisingly, Ms Wickers took this to mean that she would be dismissed if she did not resign and she subsequently submitted a letter of resignation which, the director accepted.

Subsequently, Ms Wickers lodged a case with the Employment Tribunal contending that she had been subjected to disability discrimination.

At the Tribunal the key issue was to determine whether or not Specsavers had constructive knowledge of Ms Wicker’s disability during the relevant period. That is, could they reasonably have known that she was a disabled person?

The Tribunal noted that Ms Wickers had not informed the Company about her treatment for depression “as fully as she should have done” and had not confirmed that the reasons for her absence were due to her depression. Nonetheless, the Tribunal found that Specsavers could reasonably be expected to know that Ms. Wickers had a disability following her first conversation when she disclosed this to the director and also  during discussions that took place during the course of the disciplinary proceedings.

The Tribunal also found the director to have an “unsympathetic approach to mental illness” and that his comments amounted to discrimination arising from disability. It concluded that Ms Wickers was also subject to discrimination arising from disability in respect of her resignation. It transpired that on the day in question, Ms Wickers had overslept due to her medication and the effect of the medication on her sleep was something that arose from her disability.

The Tribunal also found that the two incidents amounted to harassment and that there had been a failure to make reasonable adjustments.  The Company could have stopped the disciplinary meeting and allowed Ms Wickers time to reflect.

The outcome was that the employer would pay compensation of £7,500 and provide an agreed reference. Ms Wickers also received £893 in costs.

So, to answer our clients’ question:

This case is an important reminder that employers are required to take reasonable steps to ascertain whether or not an employee is disabled.

If you or a member of your staff is faced with a similar situation make sure that you take note of the following points:

  1. Never jump to conclusions, but, do make sincere enquiries about the employee’s health
  2. Ensure that you obtain medical evidence as soon as you become aware that the employee may be manifesting symptoms indicative of an underlying disability
  3. Always approach enquiries about an employee’s health in a sensitive, considerate and non-judgemental manner.

If you would like further help on this particular matter or any other HR topic then please give us a call, our expert HR Professionals here at Sagegreen HR can offer you advice.

Please feel free to call us on 01606 333677 or alternatively, email us your query on enquiries@sagegreen.comand we will be glad to help you.

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