Construction workers can sue for stress — Tribunal rules staff can claim disability discrimination even if not diagnosed with mental illness

Construction employees who suffer work-related stress can sue their employers for disability discrimination — even if they have not been diagnosed with a mental illness by a doctor.  That’s what a recent ruling from an employment judge suggests — and it raises the prospect of a wave of disability discrimination claims related to stress at work, adding more pressure to the already overburdened tribunal system.

As reported in the Times, Debra Phillips, an NHS worker, sued Aneurin Bevan University Health Board — which covers Gwent for NHS Wales — for disability discrimination. A hearing in Cardiff was held to decide whether Mrs Phillips could be considered as disabled under the Equality Act 2010. 

According to the judgement, published last month, Judge Robert Vernon said he was “persuaded” Phillips had established she had a disability “for the purposes of the Equality Act 2010”.  If she were not found to be disabled, Phillips would have been unable to proceed with the disability discrimination claim.

Of course, construction employers already have a duty to make reasonable adjustments for any employee experiencing a disability under the act — which can include a mental health problem if it has a substantial, adverse and long-term effect on day-to-day activities. To benefit from the protection of the act, employees have to disclose their disabilities.

The judge found that Mrs Phillips had “clear” medical records showing she was stressed from February 2021 until November last year.

He wrote: “There are also entries within her medical records revealing that on several occasions throughout that period, fit notes have been issued by the doctor indicating that she is unfit for work as a result of work-related stress.”

The health board claimed work-related stress could not amount to a disability, saying there was a distinction between a mental illness such as clinical depression, and a “reaction to adverse life events” such as problems at work.  Many construction employers would argue the same thing. 

But the judge said that the impact of work-related stress on Mrs Phillips’s life was “significant”, adding: “She has described being unable at times to leave the house, she has described being unable to socialise with others, she has indicated that on numerous occasions her sleep has been affected as has her ability to concentrate.

“They are all effects on her ability to carry out day-to-day activities which are adverse and which are substantial.”

In finding that Mrs Phillips could be considered disabled, Vernon said: “The symptoms were obviously sufficiently significant for her to be signed as being unfit for work as a result of stress at work. I also place significant weight upon the evidence which Mrs Phillips has given me, which I found to be compelling evidence, as to the impact that this condition has had upon her.”

A formal diagnosis of a mental illness was not required for the tribunal to be satisfied Phillips was suffering from a mental impairment, the judge said.

He said: “On the basis of my findings Mrs Phillips has suffered those effects on her abilities (which are substantial, for a prolonged period of time and for more than 12 months.” The issue of impairment must be seen in that context, the judge said.

He added: “Even though there is no formal diagnosis of any medical condition I am satisfied that, given the other findings I have made, I can also make a finding that that is as a result of a mental impairment.”

Large employers in construction should take this seriously. Stress and mental health awareness are still issues with which the construction industry is grappling.  In 2022, more people than ever before reached out for help from the Lighthouse Club, the construction charity (one of our charity partners).  

Stress, depression, and anxiety account for 27 per cent of all work-related illness in construction. In Randstad’s most recent report on mental health in the construction industry, more than a third of 3,400 construction workers polled by Randstad (34 per cent) reported experiencing a mental health condition within the previous year. Just under a quarter of construction workers (23 per cent) said they were considering leaving the industry in the next year as a result.  At the worst end of the spectrum, every working day in the UK, two construction workers take their own life. 

While the matter isn’t settled — Mrs Phillips’s disability discrimination claim will proceed to a full tribunal — construction employers should consider this a shot across the bows.  

 

Simon Harris is the senior director of operations for Randstad UK’s construction and property recruitment team