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.

About

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 name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.78 Average

143 Reviews

Liz P

An excellent professional service was provided by Chris Hadrill and Mel Chin. Efficient and trustworthy - would highly recommend this company.

Posted 1 week ago

Anonymous

Redmans Solicitors were great. They were able to advice me quickly and efficiently! I would recommend them, as a good solicitors to use.

Posted 1 week ago

Anonymous

Extremely efficient. Mel made a difficult situation bearable and gave good clear guidance thoughout.

Posted 2 weeks ago

Anonymous

Thanks Chris and Sacha I was reassured throughout the process and a happy outcome

Posted 2 weeks ago

Edward F

Good and clear employment advice

Posted 2 weeks ago

Richard O

Chris at Redmans is my go-to legal expert when it comes to employee-related matters. His depth of knowledge, experience and considered approach to problems and their solutions is highly valuable. I cannot recommend Redmans highly enough.

Posted 3 weeks ago

Rory Y

They provide me with timely and clear advice!

Posted 3 weeks ago

Steven C

Redmans handled my settlement with my employer quickly, decisively and to a standard that I was very happy with. I would in similar circumstances contract them again

Posted 3 weeks ago

Deepthi K

Transparent. Clear communication. Prompt reply’s. Saves lot of time. Very satisfied.

Posted 3 weeks ago

Anonymous

Chris and Sacha did a fantastic job and negotiated a significant better settlement agreement

Posted 3 weeks ago

Dino D

I did get a very swift and god service from Redmans

Posted 3 weeks ago

Stephanie H

Clear, prompt, effective support from Chris which has been very much appreciated. Thank you again.

Posted 1 month ago

Anonymous

I would highly recommend Redmans Solicitors, the team were very friendly and my case was dealt with professionally and efficiently. Thank you!

Posted 2 months ago

Shane M

Very professional, welcome advice at a crucial time. Always available and reasonable cost.

Posted 2 months ago

Anonymous

My case was relatively straight-forward. But even so, working with Redmans was easy, quick, professional & clear. Many thanks

Posted 2 months ago

Anonymous

The team were very helpful and answered all my questions regarding my redundancy. Initially I had a call with one of the representatives who escalated my request to a suitable employment solicitor. We arranged a call to discuss the settlement and she helped answer all my questions. We then mainly contacted through email which helped resolve the settlement quickly and convently. Thanks for all the help.

Posted 2 months ago

Djaouida T

You have good communication.

Posted 2 months ago

Anonymous

Fast and professional. A highly recommended company for employment related issues.

Posted 2 months ago

Anonymous

Very professional service.

Posted 2 months ago

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 10 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 11 months ago