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15 January 2024

Depression/Anxiety disorder and work

This item is intended to provide general guidance for employees who are suffering from depression and/or an anxiety disorder, namely those suffering from a recognised medical condition which has lasted or has the potential to last for 12 months or more, either as an ongoing condition or through recurring episodes. Whilst stress at work affects many, stress is not a legally protected medical condition for the purposes of the disability provisions of the Equality Act 2010. Stress at work is also frequently belittled by employers and there are varying degrees of depression and anxiety.

The first requirement is to get the best medical advice and a reliable diagnosis, and this normally means going to an experienced specialist, such as a Consultant Psychiatrist, either directly or by referral. This provides a basis for an employee getting protection under the law and a means of establishing the necessary level of credibility in dealing with an employer. It also addresses the first priority, namely to form the basis for the best medical treatment and for a recovery of health. Simply being signed off work by a GP is unlikely be sufficient, either to support a recovery or to obtain a true understanding of the severity of the condition. Simply undergoing an Occupational Health assessment is also unlikely to be sufficient.

The second requirement is to make the employer aware of the medical issues as the employer cannot be held legally accountable unless the employer has actual or constructive knowledge of the existence of a mental or physical impairment which has a substantial and long term effect on the employee’s ability to undertake normal day to day activities, whether work related or otherwise. An unfit to work certificate by a GP is unlikely to achieve this as there is no considered, formal, diagnosis that the employee can present to their employer to show what they are suffering from, what the symptoms are and how this is affecting them.

As depression and anxiety disorders are potentially not visible to an employer and diagnosis is partly based on the employee’s self-reported symptoms, addressing the employment relationship has to be considered differently to a more obvious physical impairment and so obtaining the best medical advice and evidence as early as possible is therefore critical.

The main point for us to make is that the disability discrimination law differs from other protections from discrimination in that it imposes on an employer a positive duty to make reasonable adjustments to reduce the adverse impact of requirements which do not affect people who do not have a disability. This is why the employer’s knowledge of the disability is of critical importance.

In seeking medical advice it is necessary to be open and transparent with the medical advisers after undertaking an honest and proportionate period of self-reflection on the symptoms being experienced. Many do not recognise that they are ill, particularly where they are high achievers who consider themselves more than able to deal with what life and work throw at them. Often they are used to being seen as the best and the strongest, but an issue over their conduct, performance or personality can throw them completely off track.

Common symptoms of depression include:
Loss of focus and concentration;
Intolerance and bad temper;
Lethargy and low mood;

Those suffering from an anxiety disorder may suffer panic attacks.

Some may initially put these symptoms down to age or the after effects of physical health problems such as viruses or injuries which disrupt normal life.

The next important consideration is getting legal advice from someone familiar with dealing with these issues who can identify means of retaining credibility and gaining practical help. Employers are not legally obliged to employ someone who is too ill to work but they are required to take on the burden of working out whether reasonable adjustments to preserve the employment of someone with a disability (as defined) will make a difference. This could include consideration of access to long term sickness insurance provided by the employer. It is very common for absences due to illness to be followed by selection for redundancy, whether by coincidence or design, and it is usually necessary for a lawyer to assess whether there is proof of a causal link or to call upon the employer to observe the additional protections which may be available to the employee in these circumstances.

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Peter McRoberts
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George Clough
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Elizabeth Coyle
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