Hello and welcome back to your weekly case law update. Last week was our monthly employment law update which had features on equal pay settlements at the BBC, parental bereavement leave and some of the cases to look out for in 2020.

This week’s case is a first instance tribunal case. Whilst not binding precedent on future cases it does highlight how the judiciary is taking a fairly “woke” approach to mental health conditions.

This week we are looking at unfair dismissal and disability discrimination.

The question this week is:

Does reactive depression to a marriage breakdown qualify as a disability under the equality Act 2010?

Should such a condition be taken as mitigation evidence during disciplinary proceedings?

Mr Plowright, the Claimant, was a installation engineer for Sky, the Respondent. The Claimant was responsible for installing satellite TV at the homes of the Respondent’s customers. The Claimant had over ten years’ service and an unblemished service record.

The Claimant suffered a breakdown of his marriage. This resulted in his wife and daughter moving out of the family home. The Claimant made his managers aware that he was having personal troubles and feeling low/depressed because of that in March and December 2017.

The Respondent’s business involves engineers often working alone on ladders. It has strict rules for PPE and health and safety. To ensure engineers follow health and safety practices, the Respondent monitored them with unannounced site inspections. The Claimant had never had any issues raised during his previous inspections. As a large employer, the Respondent also had access to comprehensive occupational health services which all employees were aware of.

During February 2018, the Claimant was observed working an unsecured ladder with only a helmet for PPE during an unannounced site visit. The Claimant was invited to an investigation meeting to discuss the incident. During the meeting he said that his wife and daughter were moving out of the family home and a conversation with the customer about her own daughter had caused him to have a lapse of concentration.

The Claimant was also asked why he had not referred himself to occupational health if he was feeling unfit to work. The Claimant argued that it was not until the topic of his daughter had come up that his work had been impacted. Before that he preferred to keep it to himself. The Claimant was subsequently diagnosed with reactive depression, anxiety and a mood disorder by a combination of OH and his GP.

The Claimant was subsequently dismissed. The Respondent highlighted the Claimants failure to refer himself to OH as a reason why his mental health was not full mitigation to the conduct. They also cited that given the problems had been ongoing since 2017 it was unlikely that they impacted his performance so heavily in February 2018.

The Claimant commenced an ET claim and the ET allowed the claim. Despite the Claimant only being diagnosed with mental health conditions after the ladder incident. It held that the condition was likely to last more than 12 months and that the Respondent was aware of these conditions before making the decision to dismiss the Claimant.

The ET allowed the claim. It held that the Claimant’s dismissal was discriminatory and not an appropriate and necessary means of achieving its aim, the disadvantage to the Claimant of losing his job outweighed the Respondent’s business needs.

The takeaway point:

Yes, in this case a combination of mental health condition caused by the dissolution of an employee’s family was likely to amount to an impairment that would last more than 12 months. A disability such as this should also be strong mitigating evidence to reduce any disciplinary sanction down from dismissal. Particularly if the employee has a clean employment record prior to this.

Also in this case the Respondent tried to argue that an employee not referring themselves to OH as a stick to beat them with. Arguably the managers informed of the Claimant’s difficulties should have referred him as typically, most people do not like admitting to suffering from mental health conditions due to fear of stigma.