Are anxiety and depression counted amongst the illnesses qualifying for extended sick pay on the grounds of sickness contracted at work? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.
The question:
Where there is provision to extend sick pay beyond the normal limits, on account of injury/illness contracted during the course of duty, would illnesses such as “anxiety” or “depression” reckon as a work related illness for this purpose. Anyone had such claims?
Nadine Mena
Legal advice:
Esther Smith, partner, Thomas Eggar
I am not entirely clear whether you are referring to a contractual obligation to extend sick pay or an obligation that may be imposed as a reasonable adjustment under the Disability Discrimination Act.
If you have a contractual provision which provides for additional or enhanced sick pay where the illness or reason for absence is work related, then the question of whether this applies in a case of anxiety or depression really depends on a medical opinion as to the cause of that condition.
If you are looking at the obligations under the Disability Discrimination Act, then anxiety and depression can qualify as protected conditions under that legislation, but again this qualification is subject to support by medical opinion. If someone is covered by the legislation then continuation of full pay during their absence may be a reasonable adjustment, depending on the particular situation, but this is not affected by the issue of whether their condition is caused by or attributable to work.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Martin Brewer, partner and employment law specialist, Mills and Reeve
Nadine, it is perfectly possible for anxiety, stress, depression etc. to be caused or exacerbated by work. There are a number of cases both in relation to personal injury and indeed disability discrimination which turn on identifying stress and similar ‘injury’ as capable of a) amounting to a personal injury/disability and b) caused by work or the work environment.
Whether your policy was intended to cover this type of psychological injury is a matter of construction. I note that you use the word ‘contracted’ and I suppose in the strict sense of the term one doesn’t ‘contract’ stress so you could possibly argue that that your policy was aimed at physical injury (assuming ‘contracted’ is the word in the policy). However, unless the policy is very clear on the point it is very likely to stretch to psychological as well as physical injury.
Martin can be contacted at: martin.brewer@mills-reeve.com
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