When is a mental impairment a protected disability?
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15.7.2010 The Employment Appeals Tribunal has given guidance on how a tribunal should determine whether a mental illness is a protected disability for the purposes of the Disability Discrimination Act 1995 (“DDA”), suggesting that the starting point should be an examination of the effect of a given condition on the claimant. To be protected under the DDA, section 1(1) states that a Claimant has a disability if he has: The four considerations must be considered separately whist also bearing in mind “the whole picture” (see Goodwin v Patent Office). The requirement that a mental illness be clinically well-recognised in order to amount to a “mental impairment” was removed by section 18 of the DDA 2005. In the case of J v DLA Piper UK LLP, the claimant was a barrister with a history of depression. She had been diagnosed with symptoms of depression by her GP and an occupational health doctor whilst working in previous jobs. She had applied for, and was offered, a job with the respondent and was asked to complete a medical questionnaire. Prior to doing this, she informed an HR Manager at DLA about her medical history and, after a few days, she was informed that her offer had been withdrawn due to a recruitment freeze caused by the credit crunch. J made a claim in the Employment Tribunal, asserting that DLA had unlawfully discriminated against her by withdrawing her job offer after finding out about her history of depression. A preliminary issue to be decided was whether J was “disabled” at the date of the alleged discrimination. J argued that she had a long-term condition of clinical depression which had a substantial effect on her ability to concentrate (a normal day-to-day activity). The Tribunal disagreed and held that she had not shown that her symptoms of tiredness, anxiety and low moods were reliable and consistent symptoms of clinical depression. Even if she had been suffering from an impairment, it did not have a substantial adverse effect on her ability to carry out normal day-to-day activities as the quality of her work was unaffected, despite some difficulties with attendance. J’s appeal to the EAT was allowed and the case was remitted to a fresh tribunal for determination of the discrimination point. The EAT found that the Tribunal was wrong to consider the mental impairment issue before the effect of the condition on J. Conversely, it was held that where the mental impairment issue is in dispute, it makes sense to first assess whether the claimant’s ability to carry out normal day-to-day activities is adversely affected on a long term basis. The question of impairment should then be considered in light of those findings and, in most cases, it will follow “as a matter of common-sense inference” that the claimant is suffering from a condition which has produced that adverse effect. Drawing such an inference will mean that the Tribunal will not be required to resolve potentially difficult medical issues which may arise.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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