Mr Herry was a design and technology teacher who, in 2012, brought wide-ranging Employment Tribunal claims against Dudley Council and the governing body of the school where he worked (referred to as his employer in this article – it’s worth noting he was still employed at the time). To give an idea of the size of the claim, it involved 90 separate allegations spanning a four year period, was heard over a 39 day hearing and resulted in a 317 page judgement. The Employment Tribunal dismissed all of his claims.
Unsurprisingly his employer made an application against Mr Herry for recovery of the costs it had incurred in defending the claims. It argued that he had behaved unreasonably, having pursued his claim in the face of advice from his union and two separate law centres that he had no reasonable prospects of success. His employer had also issued costs warnings against him.
The Tribunal granted the employer’s costs application, agreeing that Mr Herry had acted unreasonably in bringing proceedings. Despite assessing Mr Herry as “impecunious” (he was off sick, had exhausted his sick pay and was left with just £22.08 disposable income per month) it ordered him to pay all of his employer’s costs, which amounted to over £110,000.
By the point of the costs assessment Mr Herry had been dismissed, and he brought further proceedings alleging disability and race discrimination. He claimed that his disabilities were dyslexia, stress and depression. The Tribunal held that Mr Herry was not a disabled person at the material time, finding that his stress was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.
Mr Herry appealed both the costs and disability decisions.
Appeal against costs award
The EAT upheld Mr Herry’s costs appeal in part as it considered that the Tribunal had not explained in sufficient detail why it considered that the costs award made was reasonable and proportionate in light of Mr Herry’s financial position. It held that there was “an obvious case” for capping the award or awarding only a proportion of the costs, and these options had not been considered. The matter was remitted to the Employment Tribunal to be considered again.
Appeal against disability discrimination decision
Mr Herry’s appeal in relation to his disability discrimination claim was, however dismissed. The EAT considered that the Tribunal had applied the correct legal test and stated 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”. There is a difference between a mental impairment (which can amount to a disability) and a reaction to life events (which cannot). The EAT also noted that there was a ‘dearth’ of evidence provided by Mr Herry as to the nature of his alleged work related stress, mostly limited to his sick notes.
This case relies on established principles, but is useful guidance for employers, many of whom will have experienced the situation where an employee goes off sick with stress following events at work (such as being put at risk of redundancy or being subjected to disciplinary proceedings). The judgement highlights that the focus in cases of stress-related disability discrimination claims is whether the individual’s condition has had a substantial long-term effect on their ability to carry out day-to-day activities, and the need for claimants to provide evidence in this regard.