According to the Office for national statistics, around 6% of people suffer with generalised anxiety disorder, and with over 8 million people expressing an anxiety disorder at any given time. For employers, dealing with anxiety in the workplace can be very difficult. Most employers are aware that if an employee is suffering with a disability, they have an obligation to make reasonable accommodations to their role to accommodate that employee. However, with invisible disabilities including mental health disorders it is sometimes very difficult to determine whether there is a condition which amounts to a disability, and what accommodations are reasonable or necessary.

Is it anxiety or are they feeling anxious?

We’ve all experienced the dreaded “pop into my office” call from a manager.  You will know the feeling – your stomach drops, your heart pounds, and a feeling of complete dread comes over you as you convince yourself you’re about to be fired.  In short, you’re feeling anxious.

Firstly, it is important to point out that feeling anxious is a normal emotion experienced by the majority of the population at some point or another. Some people are naturally more anxious than others, and feeling anxious on a regular basis does not necessarily give rise to a diagnosis for an anxiety disorder. According to the NHS, ‘although feelings of anxiety at certain times are completely normal, you should see a GP if anxiety is affecting your daily life or causing you distress’.

Even if you have received a diagnosis for a generalised anxiety disorder, case law shows that this does not necessarily give rise to a disability. A disability under the Equality Act 2010 is a mental or physical condition which has a long-term and adverse effect on your ability to carry out day to day activities. There are several parts to this:-

1. A mental or physical condition – here it is likely that a ‘condition’ will require a diagnosis.  It is difficult to see how anxiety symptoms could amount to a disability if they do not amount to an anxiety disorder.

2. Long-term - long-term in the context of the Equality Act means lasted or expected to last for 12 months or more. Whilst it is quite normal to feel anxious on a short term basis, for example in anticipation of an important project or presentation, at the outset of a big life event such as having a new baby, or as a result of the breakdown of a relationship, or bereavement, it would be unusual for these symptoms to last more than 12 months. However in cases of an anxiety disorder, you would reasonably expect that those conditions wouldn’t not resolve themselves in a short period or after the resolution of an imminent event.

3. Adverse impact on day-to-day activities - in order to qualify as a disability, the mental or physical impairment must have substantial impact on the sufferer's ability to carry out day-to-day activities. Day-to-day activities are usually things such as getting out of bed, preparing meals, bathing or hygiene matters, normal travel or socialising. The impairment must be ‘more than minor or trivial’ and it must relate to day-to-day activities.

Does anxiety amount to a disability?

It is clear that even when there has been a diagnosis of anxiety, the claimant may struggle to clear those hurdles. For example in the 2014 case of Saad v Southampton University Hospitals NHS Trust, the claimant had been diagnosed with anxiety and depression. He was a doctor employed as a specialist registrar training to become a cardiothoracic consultant. His contract was not renewed and as a result he claimed that he had been discriminated against because of his disability.

However in the Employment Appeals Tribunal, the EAT stated that whilst Mr Saad had a mental impairment, it was not a disability within the meaning of the Equality Act. He did not demonstrate that he had a substantial or long-term adverse effect on his ability to carry out normal day-to-day activities. In that case, Mr Saad’s difficulties were with certain medical textbooks and communicating with his colleagues. The EAT said that was very different than a case where someone cannot, for example leave their home, or get dressed. It is these types of activities which would indicate a disability within the meaning of the Equality Act.

That is not to say that in any case anxiety will not be a disability, but it is clear that the effects must be relatively severe in order to fall within the scope of the Act.

What should employers do if they suspect a disability?

It is difficult to determine whether an employee has a disability, but there are some signs employers should look out for:

• Difficulty performing day to day tasks;

• Frequent or prolonged periods of sickness absence;

• A diagnosis of generalised anxiety disorder, depression, or other mental health condition; and

• Information from the employee which indicates a disability – for example, if the employee is applying for or receiving benefits or support such as personal independence allowance.

If as an employer you have concerns that an employee's anxiety may amount to a disability, it is always worthwhile seeking the views of occupational health or the employee's own medical professionals and specialists. A medical professional may be able to help you determine with the employee is suffering from a disability and, if so, what adjustments can or should be made to their role to accommodate them.

What adjustments should an employer make?

When it comes to reasonable adjustments, these should be determined on a case by case basis.  The appropriate adjustments depend on the employee in question, their role, and their condition.  However in the case of anxiety disorders, some adjustments might include flexibility on working times, additional one-to-one mentoring time, adjustments to the tasks included in the employee’s role, providing written guidance on tasks, or planning meeting meetings well in advance with written agendas confirming the topics for discussion.

Is an employer required to make adjustments if the employee is not disabled?

No.  The requirement to make reasonable adjustments under the Equality Act only applies to people who have a disability within the meaning of the Act. An employee who is feeling anxious, but is not disabled, would not be entitled to accommodations by law.  You might make accommodations anyway, but you aren’t required to.  For example, if an employee is experiencing a period of anxiety following a bereavement, you might grant leave under a compassionate leave policy.  That is not the same as a reasonable adjustment under the Equality Act.

What if the role can’t be adjusted?

We all have parts of our jobs we don’t like, and probably parts which make us really uncomfortable.  For example, most people don’t love public speaking and will feel nervous before an event or occasion which requires it.  If the employee is not disabled, there is no obligation to adjust the role at all.  It is not unfair or against the law to require your employee to do something which might make them feel nervous or anxious.

The situation is more complicated with disabled employees.  Imagine, for example, a person whose job revolves around public speaking, such as a university lecturer.  If that employee then developed a condition (whether anxiety, depression, or something else) which led them unable to undertake public speaking engagements, and they asked their employer to remove all public speaking from their role, is the employer expected to accommodate this? 

Probably not (although I won’t say definitely not as each case turns on its own facts).  The duty to make accommodations is only an obligation to make accommodations which are reasonable in all the circumstances.  If removing the public speaking from the university lecturer’s role would mean that they would effectively have no work left to do, the employer would probably not be expected to accommodate this, and would instead be looking at making a capability dismissal or perhaps moving the employee to a different role which is suitable for them given their disability if this can be accommodated.  However, a word of warning - dismissals for capability reasons relation to illness or disabilities are complex and require professional advice.

If you have any queries regarding the duty to make reasonable adjustments, or anything else in this article please contact Charlotte Braham by email or on 01494 893529.