In Herry v Dudley MBC the EAT was asked to consider if stress amounted to a disability under the Equality Act. Further, it was asked to consider if the Tribunal had fully considered the Claimant’s ability to pay when ordering him to pay all the Respondent’s costs (in excess of £100,000).
Mr Herry, a former teacher, brought a claim against his employer for disability discrimination (amongst other claims). He raised more than 90 allegations covering a period of more than four years and the hearing that ensued lasted 39 days. In pursuing his claims, Mr Herry ignored advice given to him by his advisers that the claims had no reasonable prospect of success and also several costs warnings. All claims were dismissed and the Claimant was ordered to pay the Respondent’s costs in full.
The EAT (upholding the Tribunal’s decision) said that “Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments: they may simply reflect a person’s character or personality.” It held that Mr Herry’s stress was very largely the result of his unhappiness about what he perceived to have been unfair treatment and the fact he had been certified unfit to work did not necessarily mean he was disabled.
The EAT found no fault with the Tribunal’s reasoning for ordering costs, however, it felt it had failed to explain why it felt that future earning capacity was sufficient to pay the whole amount and why paying a proportion of the costs was not appropriate.
This case builds on existing case law to demonstrate that a feeling of unhappiness with treatment received will not amount to a disability even if this results in absence from work. It also serves as a warning to claimants to give due consideration to the merits of their claims and act reasonably in the conduct of proceedings.