UpdateIs Burn-Out a Disability employers are liable for?

May 24, 2021

A recent employment tribunal decision has held that a Managing Partner of a Legal 500 regional law firm, was discriminated against by his employer when he was suffering from Burn-out. In particular, his employer failed to understand his condition and respond appropriately.

The Claimant was the managing partner of one of the Respondents offices, and was also one of the firms’ top billers for five consecutive years, regularly recording 2,600 chargeable hours of work against a target of 1,400, with an additional 200 to 300 hours a year spent on business development. This meant that the Claimant was regularly working 15+ hours per day.

Excessive or prolonged stress can gradually build up and result in burn-out. In the International Classification of Diseases (ICD11), the World Health Organisation defines burn-out as a syndrome from chronic workplace stress that has not been successfully managed; It is characterized by feelings of energy depletion or exhaustion; increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and reduced professional efficacy.

Under the Equality Act of 2010 (EqA 2010), a person is defined as disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.

Further, the EqA 2010 protects a wide range of individuals within the workplace, not just employees. This means that former employees, job applicants, contract workers, partners in a partnership and members of an LLP are all afforded protection from discrimination.

The Respondent firm was aware of the hours worked by the Claimant and that since November 2016 he was diagnosed as having an adjustment disorder with mixed anxiety and depressed mood. However, the firm benefitted financially over the years from his drive and passion for his work.

Further, they took no steps to address his excessive working or lack of annual leave. When the Claimant took a substantial break from work the firm relied on him seeking his own advice and counselling and did not enquire further about the seriousness of his disability or ask how they could help support him.

The Respondent firm had an employee assistance programme (EAP) in place which offers counselling, but relied on there being a “general awareness of it because it is on the intranet” but no active steps were taken to direct the Claimant to this resource.

Furthermore, when he returned to work, no return-to-work plan was put in place, no mentor was appointed, nor were any reasonable adjustments made (a requirement under the Equality Act).

In fact, the Claimant was told by his employer to be ‘more jovial around the office’ and that he should ‘be more positive’ in the office even if he was not feeling positive.

Employment Judge Broughton held that to give an instruction to someone with a depressive mental health condition who is taking medication (you have failed to enquire into the effects of), to in effect ‘cheer up’ or at least to appear to be more positive, is grossly insensitive, quite irresponsible and reckless.

This decision will be a wake-up call for those industries and professions which have a long hours culture, and the real threat of burn-out and other mental ill health.

As employers may be liable, for not only discrimination (as in this case) but also possibly psychiatric injury, they should review their processes and procedures, in particular: Working Time; Health and Safety and Wellbeing.

W Legal are able to provide any assistance and or training in this area and would love to answer any questions either an employer or employee may have.

If you would like to have a confidential discussion with our employment department, please get in touch with Charlotte Turnbull at charlotte.turnbull@wlegal.co.uk

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