Can depression be classified as a disability in the workplace? In this article, we address whether depression can constitute a disability under Section 6 of the Equality Act 2010 (EqA 2010).
The analysis concludes that depression can potentially qualify as a disability under s6, when it leads to "mental impairment" that has a "substantial and long-term adverse effect" on the individual's ability to carry out normal day-to-day activities.
Analysis:
For depression to qualify as a disability under the EqA 2010, it must meet the two-part test laid out in Section 6(1).
First, depression is explicitly recognised as a potential mental impairment under Section 6(1)(a), according to the official Guidance Disability discrimination. Therefore, the first part of the test can be satisfied if an individual's depression amounts to an impairment.
Second, the depression must have a "substantial and long-term adverse effect" on the individual's ability to carry out normal day-to-day activities, per Section 6(1)(b). The substantiality of the effect is judged without considering any treatment or corrective measures the individual may be receiving Equality Act 2010 (2010 c 15).
Additionally, for the adverse effect to be considered long-term, it must have lasted or be likely to last at least 12 months Equality Act 2010 (2010 c 15).
Therefore, whether depression constitutes a disability in your case will depend on the specific facts: the severity and duration of your condition; how long it may last or has lasted; whether the current situation is a relapse or a new condition; and to what extent it has an adverse impact on your ability to carry out normal daily activities. The last one is measured when discounting treatment.
Therefore, it is not the depression itself that needs to be addressed, but rather the impact it has on each employee on a daily basis that determines whether it qualifies as a disability under section 6 or not.
The EqA 2010 Guidance on Matters to be Taken Into Account states that 'mental impairment' includes:
recognised mental illnesses such as ''depression''
We know that, depression has ability to constitute to "mental impairment" under Section 6(1)(a). but whether the "mental impairment" amounts to a substantial and long-term adverse effect under Section 6(1)(b) on your ability to perform daily activities will differ from one employee to the other, therefor you should focus on your circumstances.
The Guidance provides that the effect must be judged without considering any corrective measures, such as treatment, walking aids, or other support, which makes it a completely different criteria than those used by the Department for Work and Pensions in relation to benefits like Universal Credit or PIP.
An impairment is deemed long-term if it has persisted or is expected to persist for at least 12 months Equality Act 2010 (2010 c 15).
Every case is unique and should be evaluated individually; let's look at this examples:
Would an employee experiencing depression, who is unable to socialize, shop, or attend in-person appointments due to coping mechanisms or a fear directly caused by depression, be regarded as disabled?
In the case of Miles v Driver and Vehicle Standards Agency, it was noted that avoidance strategies, such as not going shopping in person or not going to work, should be considered when determining if an impairment is substantial Miles v Driver and Vehicle Standards Agency.
When examining paragraph B9 of the guidance that tribunals must use when addressing the same issue, it becomes clear that depression, like any condition, is categorized by its symptoms and the effects it has on the employee.''B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty.''
Full guidance can be found here - Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability (HTM
Precisely analyzing the guidance for each case requires building an argument and presenting it to the Tribunal. Consequently, with many litigants in person, representatives, and defendants, different strategies are employed to convince the Tribunal. However, the tribunals must follow this guidance. Understanding the document and applying it in practice can be difficult, so below and in other articles on our website, we offer an extensive list of the most common examples.
We have already explained that depression is covered by both the EqA2010 and the Guidance. According to the NHS, one of the main symptoms of depression is "having no motivation or interest in things," so now we should ask the question: "Can adverse effects on the ability to perform daily activities be a lack of motivation and be covered by section 6?" A short anser is ''Yes'' low motivation is covered.
Let's look at those two paragraphs:
A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.
A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.
Therefore, in our situation, the impairment, such as "lack of motivation" for activities like going out or shopping (both of which are also included), does not need to be demonstrated as a consequence of depression [illness]; if it has lasted for 12 months or is expected to last that long, it will be considered a disability under section 6.
The guidence in its apendix underpins the low motivation:
difficulty in getting dressed, for example, because of physical restrictions, a lack of understanding of the concept, or low motivationit
Particular attention needs to be paid on ''for exaple'' which means that ''getting dressed'' is not the only activity covered by ''low motivation'' in fact it extends to the followings: shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities
What about inability to drive ? Whether due to low motivation [ as we learnt to be covered] or due to depression medication [ as its common ristriction is ''don't drive or use machinery] - is it covered ? Pay attention on various forms of transport.
Yes - under the same apendix
difficulty using transport; for example, because of physical restrictions, pain or fatigue, a frequent need for a lavatory or as a result of a mental impairment or learning disability
Conclusion:
In conclusion, depression can potentially constitute a disability under Section 6 of the EqA 2010 if it satisfies the two-part test of: (1) amounting to a "mental impairment", and (2) having a "substantial and long-term adverse effect" on the individual's ability to carry out normal day-to-day activities. The determination is highly fact-specific and will depend on the severity and duration of the depression's impact on the person, even when discounting any treatment or corrective measures.
Read also:
What Long-term means ? Has the ''somehting'' to have lasted for at least 12 months ? or how to show it is likely to last for at least 12 months.
Additionally, for the adverse effect to be considered long-term, it must have lasted or be likely to last at least 12 months Equality Act 2010 (2010 c 15).
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