Should we include stress and depression when using the Bradford Factor?Posted in : Seamus Says - Employment Law Discussion on 1 June 2018 Issues covered:
We include stress and depression in the Bradford Factor. Should this be included to meet a trigger or not?
Scott: There's no legal definition of stress, but of course, depression would be one of those areas that would be covered by Disability Discrimination Act 1995 (DDA).
Seamus: It can fall in certainly to a disability and then obviously if you're using that as criteria, you need to be very careful about how you're applying that criteria and whether or not that is discriminatory to the employee.
Scott: It all comes down to basically what you're doing is you're applying a criteria and a practice to everybody, but it has a bigger impact on certain people. No indirect discrimination applies to Northern Ireland thanks to the Malcolm and Lewisham case. What does happen is you have to consider is it a reasonable adjustment to take that criterion out and say we're not going to do where there are absences for depression or whatever it happens to be. That goes back to some of the previous questions. Should you be applying the same standards to somebody who's disabled or not? It has a bigger impact on them and they can say you should make a reasonable adjustment in my circumstance to enable me to at least do the necessary parts of the job.
Seamus: Yeah. Give me the same crack at the whip as everybody else, that's the purpose and the nature of it. I would be careful in relation to the depression, the stress. You might be okay on that one if the person is alleging the stress is a result of their work. You can see the slight and scale on that certainly, but depression, I would be careful if they see too many occupational health reports that come back to say this is likely going to fall under DDA.
Ultimately, they say it's a legal matter, but we take our starting point from that.
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