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

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

    Testimonials

    4.80 Average

    371 Reviews

    Jonathan L

    The service I received was friendly and professional. I appreciated the timely communications and Mel was always available for any questions I had. I'd definitely recommend Redmans and will use them in a heartbeat should the situation arise again.

    Posted 4 days ago

    Glyn B

    Provided a great service, covered all my requirements

    Posted 4 days ago

    Fidel A

    Redmans Solicitors recently helped me navigate a recent employment termination settlement agreement. Chris Hadrill is very professional and you will be in good hands with him. I score Redmans 4 out of 5 because things had to move fast and felt the team member assigned to my case wasn't very responsive at times. Having said that, I was very happy with the outcome and have no hesitation in recommending their services.

    Posted 5 days ago

    Nigel A

    Chris Hadrill is hugely impressive - the right blend of assured calm and savvy professionalism. I've already recommended him to friends and family.

    Posted 6 days ago

    Matt O

    I was hugely impressed with the ease of being able to work with Redmans Solicitors and their professional approach. Mel was really clear around the process, and costings required and I felt comfortable throughout. I would certainly recommend.

    Posted 6 days ago

    Bryan G

    Great response, and also happy to assist

    Posted 6 days ago

    David L

    I was made a settlement offer by my employer to terminate my emplyment early. Redmans helped me understand the offer, and ensured that it was fair for someone in my position. They made a very stressful situation much easier. Excellent service.

    Posted 1 week ago

    Anonymous

    I can highly recommend Redmans. The service was professional and prompt and I would not hesitate to use them again. Thanks

    Posted 1 week ago

    Anonymous

    Overall I am satisfied with the performance from Redmans. The reason I have given 4 stars is that I had quite a lot difficulty in contacting the representative which was initially nominated for me. However, when I contacted Chris instead, he was excellent over the phone and secured a great outcome in short order. I would recommend Redmans Solicitors.

    Posted 1 week ago

    Anonymous

    Chris and Redmans were a great help. Effective and efficient, quick response from my first enquiry and then straightforward and attentive throughout with ultimately a positive outcome. I will use them again and recommend them.

    Posted 2 weeks ago

    Marie P

    Great service, quick responses, good advice and all in a no nonsense, no jargon manner. Would definitely recommend.

    Posted 2 weeks ago

    Anonymous

    Rana was amazingly thorough and professional!

    Posted 2 weeks ago

    Anonymous

    I am extremely happy with the legal advice I was provided with. My case was resolved to the best of my expectations. Thank you very much for your professional help.

    Posted 2 weeks ago

    Shahzad R

    Chris and his team were excellent. They provided sound advice and consultation that resulted in more cash than was offered. Would definitely recommend.

    Posted 2 weeks ago

    Sanjay B

    I would like to take this opportunity to thank Mel Chin, for all her support during my settlement process. Where she provided a professional service and was understanding. I would confidently recommend Redmans Solicitors to my friends and family. Thank you and wishing you all a Merry Christmas.

    Posted 1 month ago

    Paul O

    Excellent response time and communication during my dealings with Redmans

    Posted 1 month ago

    Gil T

    I don’t normally write reviews, but thought it was time on this occasion. Just wanted to say that I highly recommend Redmans - especially Rana Tandon, who helped me navigate around my employment contract. Rana was meticulous and thorough and all over my needs. Would I use Redmans again ? ..absolutely

    Posted 1 month ago

    Stephanie D

    Very thorough and professional service. I was very nervous about my employment case, as I had never dealt with anything like it before. However, the solicitors who handled my case made sure I understood everything. I was never kept in the dark and Redmans kept me constantly informed about what was going on with my case. I would definitely recommend Redmans Solicitors

    Posted 1 month ago

    Richard S

    Chris and Sacha were great throughout the entire process. Chris was very helpful once the initial discussions with my company began and before we agreed there was a case. Sacha was very responsive, patient and helpful throughout ensuring I felt I had the right information to make the best decision on next steps. A close friend and wife have both used Redmans in the past few years for unfair dismissals and the service continues to be first-class and I would strongly recommend them again. They definitely help reduce the anxiety that comes with uncertainty around new processes and situations. Thank you!

    Posted 1 month ago

    Jianya

    Very nice and patient went through the whole document with me.

    Posted 1 month ago

    Susan L

    Very helpful and led me through the redundancy process.

    Posted 1 month ago