Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Herry v Dudley Metropolitan Borough Council UKEAT 0069/19/0706 , the Employment Appeal Tribunal (the ‘EAT”) held that the Employment Tribunal (the ‘ET’) had been correct in dismissing the Claimant’s disability discrimination claims but upheld his appeal against a costs order for the entirety of the Respondent’s costs.

The facts in Herry v Dudley Metropolitan Borough Council

Mr Herry (the ‘Claimant’), a design and technology teacher, was off work for over three years.  In the latter stages of his absence, he had sickness certificates referring to ‘stress at work’, ‘work-related stress’ and ‘stress and anxiety’. An occupational health report stated that Mr Herry took no medication for his stress, was physically and mentally fit for work and that from a medical point of view he could return to work as soon as possible.  However, it also stated that there were ‘still outstanding management (non-medical) issues at the workplace’ that were causing the Claimant’s stress. A further medical certificate stated that Mr Herry felt ‘the behaviour of certain individuals [is] what is stopping him from returning to work at the school and causing his stress’. However, there was no medical evidence that stress had any effect on his ability to carry out day-to-day activities, other than occasionally to exacerbate his dyslexia. 

The Claimant brought proceedings against Dudley Metropolitan Council (the ‘Respondent’) for disability discrimination.  He made more than 90 allegations covering a period of more than four years. 

The relevant law

In order for a Claimant to establish that they have a disability within the meaning of Section 6 of the Equality Act 2010, they must show they have a physical or mental impairment that has an adverse effect on their ability to carry out normal day-to-day activities which is substantial and long-term.

The decision of the Employment Tribunal

The Claimant’s claim for disability discrimination at the ET failed because it was held that he did not have a disability.  In holding that there was no disability, the ET found that although the Claimant had been off work for a very lengthy period with the reason given as stress, he had put before the ET little or no evidence that his stress had any effect on his ability to carry out normal day to day activities.

The ET hearing lasted 39 days. The reasons given by the ET for their decision ran to some 317 pages. The Respondent brought an application for costs. The ET held that the threshold for an award of costs had been crossed as the Claimant had acted unreasonably throughout in both bringing and conducting the proceedings. The ET, having decided to take account of the Claimant’s ability to pay and having found that he had little or no money, considered that he would have the future earning capacity to enable him to pay a costs order of £110,000 which covered the Respondent’s costs in their entirety.  The Claimant appealed the costs order.

The decision of the Employment Appeal Tribunal

In relation to disability, the Claimant appealed on the basis that his long-term absence, supported by sickness certificates, showed that there was a long-term adverse effect on his day-to-day activities. The EAT held that, having presented little or no evidence that his stress had any impact on normal day-to-day activities, the ET had been entitled to find that any stress was distinct from a mental impairment amounting to a disability.  In coming to their decision, the EAT referred to J v DLA Piper UK [2010] ICR 1052 which distinguished between two states of affairs which can produce broadly similar symptoms of low mood and anxiety. The first described depression as a ‘mental illness’ or ‘clinical depression,’ which is an impairment under the Equality Act 2010. The second, according to the EAT ‘is not characterised as a mental condition at all but simply as a reaction to adverse circumstances such as problems at work’.

In relation to costs, the EAT held that the ET’s reasoning provided a proper foundation and explanation for its award of the whole of the costs. The ET was not required to take account of the paying party’s ability to pay but has an open discretion whether to do so.  However, if it is asked to take account of ability to pay and declines to do so, it should explain its reasons for so doing. If the ET decides to take account of the paying party’s ability to pay, its task will be to make an assessment of the paying party’s means and reflect those means in its assessment of the amount the paying party should pay. It is, however, not limited to an assessment of the paying party’s current means; it may have regard to the prospect that these means may improve.

However, in this case, the ET had not given sufficient or adequate reasons for not having considered whether it ought to have awarded a proportion of the costs or capped the costs, having regard to the Claimant’s ability to pay.

Accordingly, the EAT upheld Mr Herry’s second ground of appeal. It found that, having decided to take account his ability to pay and having found that he was impecunious, the ET had not sufficiently explained why it considered that its award was reasonable and proportionate. It had not properly explained why it considered that Mr Herry would have the future earning capacity to pay a costs judgment of more than £100,000 and did not explain why it had not considered ordering a proportion of the costs, or a capped amount of costs, taking account of Mr Herry’s ability to pay.

Our solicitors’ views on the case of Mr Herry v Dudley Metropolitan Borough Council

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “It is not uncommon for employees to bring a disability discrimination claim relating to stress they have suffered due to difficulties at work.  In this case the ET and EAT followed already established principles and highlighted the importance of a Claimant being able to establish their condition has had a substantial long-term effect on their ability to carry out day-to-day activities and providing evidence to support this.  It also reaffirms that the cause of the condition is irrelevant.’

The decision of the Employment Appeal Tribunal in UKEAT 0069/19/0706 can be found here.


Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry


    4.79 Average

    274 Reviews

    Mary B

    I was very happy with the work Chris did for me. I believe with his help I secured a more favourable outcome both financially and in terms of clauses contained in the legal agreement I ultimately signed. I had utmost trust and confidence in the advice Chris provided throughout. Chris kept me informed at every stage and I found him very efficient at bringing matters to a conclusion without unnecessary delay.

    Posted 8 hours ago

    Mark M

    I found Redmans very easy to work with. Mel was very responsive, her advice led to an improved settlement. . Recommended.!

    Posted 3 days ago


    Fantastic service. I would recommend Redmans to anyone who needed a Solicitor. The communication was second to none and consistent clear guidance was given.

    Posted 5 days ago


    Everyone I dealt with at Redmans were professional, empathetic & always responded promptly and helped make the transition as smooth & efficient as possible for me. If you need legal advice, don’t hesitate & contact the team.

    Posted 1 week ago


    Sacha was incredibly helpful and professional. Timely and accurate advice at a time I most needed it. I was extremely impressed and grateful.

    Posted 1 week ago

    Sue W

    The people at Redmans talk to you with respect and make you feel like they take your situation personal. They clearly care and are extremely professional. I have recommended Redmans to many people.

    Posted 3 weeks ago


    Redmans Solicitors were consistently prompt, efficient and professional from the start of my reaching out to them for support in relation to contentious negotiations of an employment matter that continued for almost two months resulting in a positive settlement agreement. Chris Hadrill was diligent, thorough, empathetic and objective in his advice and guidance, showing deep and broad knowledge of the law and legal processes plus extensive practical experience in handling complex matters, resulting in clear and pragmatic advice in ambiguous circumstances that resulted in a very good outcome. I fully recommend Chris Hadrill and Redmans Solicitors! I have made this review anonymous purely because of the confidentiality obligations in the settlement agreement concluded.

    Posted 1 month ago

    Michelle W

    Redmans solicitors provided legal support and advice for a settlement agreement. Excellent customer service, very professional. The senior associate solicitor kept me updated throughout the process, showed empathy and the agreement was signed-off / completed within the agreed timeline.

    Posted 1 month ago

    Mark W

    Redmans Solicitors were extremely professional and helpful! Chris Hadrill handled my case and was an amazing help! His guidance, advice and understanding to my redundancy settlement were always clear, concise and very helpful and I am very grateful to him, and glad I found Redmans to help with my settlement. I highly recommend them!

    Posted 1 month ago

    Alison M

    Very happy with the advice I received

    Posted 2 months ago

    Margaret A

    I found everything about the company to be extremely professional and efficient. During my initial contact with Chris, he listened well and was reassuring, so I felt confident that my case would be well handled. Caroline was excellent at explaining all the legal points and answering my questions, as well as being very supportive and understanding throughout the process. I would definitely recommend this company.

    Posted 2 months ago

    Sanja K

    Very efficient and professional service.

    Posted 2 months ago


    I found the advice I was given by Redmans Solicitors to be clear and useful and found the solicitor on my case to be both knowledgeable and approachable.

    Posted 2 months ago

    Karen T

    Great service. Thank you.

    Posted 2 months ago


    Excellent service from Chris & Mel Chin. The best outcome was achieved from the redundancy process. They were extremely thorough, listened carefully and acted swiftly on my behalf. I highly recommend Redmans Solicitors

    Posted 2 months ago

    Shanine M

    Excellent service, thank you so much!

    Posted 2 months ago


    I found Caroline and Chris very Helpful and provided excellent service. Caroline especially provided great legal advice and made me feel at ease with the whole process. I would highly recommend them. Thank you!

    Posted 2 months ago

    Gayle B

    Excellent company very professional would definitely recommend

    Posted 2 months ago

    Alex K

    Redmans provided an excellent service, timely and effective. Will definitely recommend.

    Posted 2 months ago


    Great job done on my employment law

    Posted 2 months ago

    Dominica S

    Caroline & Chris were very prompt and efficient.Very happy with the service and will definitely recommend Redmans Solicitor to everyone !

    Posted 2 months ago